Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : REID -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASC 293

Planning and development law - Appeal from decision of Supreme Court refusing leave to appeal from decision of State Administrative Tribunal - Where State Administrative Tribunal had dismissed appellants' application for review of conditions imposed on subdivision approval by Western Australian Planning Commission - Whether factual connection between purpose for which conditions were imposed and the likely or possible consequences of the proposed subdivision - Clarification of test to be applied when determining validity of a condition imposed on a subdivision

Metropolitan Region Town Planning Scheme Act 1959 (WA)

Planning and Development Act 2005 (WA)

State Administrative Tribunal Act 2004 (WA)

Town Planning and Development Act 1928 (WA)

Decision of State Administrative Tribunal set aside

Matter remitted to State Administrative Tribunal for determination

Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 53 ALR 632

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142

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

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Reid and Western Australian Planning Commission [2015] WASAT 35

Reid v Western Australian Planning Commission [2015] WASC 293

Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87

Western Australian Planning Commission v Southregal Pty Ltd [2016] WASCA 53

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

1 The appellants are the registered proprietors of a parcel of land just under 40 ha in area situated approximately 5 km north of the central business district of Albany. They applied to the Western Australian Planning Commission (the Commission) (the respondent) for approval to subdivide the land into two lots. The Commission granted approval to the subdivision subject to five conditions which would require the appellants, amongst other things, to provide electricity supply to the land below the ground (as the land is currently serviced by electricity supplied above the ground); grant a restrictive covenant in perpetuity for the benefit of the Department of Parks and Wildlife, which would require the appellants and any future proprietors of the land to conserve approximately 23 ha of the land in its current condition, and which would therefore preclude any development or use of that portion of the land; and prepare and obtain approval to a fire management plan intended to protect the benefit of the conservation covenant.

2 The appellants applied to the State Administrative Tribunal (the Tribunal) for a review of the Commission's decision to impose the conditions to which I have referred. The Tribunal dismissed their application. The appellants applied for leave to appeal from that decision. A judge of this Court refused their application. They now appeal from that decision. For the reasons which follow, the Tribunal erred in law in dismissing the appellants' application for review. The decision of the judge at first instance should be set aside, the appellants granted leave to appeal and that appeal allowed. The decision of the Tribunal should be set aside and the matter remitted to the Tribunal differently constituted for further consideration and determination in accordance with the reasons of the Court.

3 Section 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) empowers a party to a proceeding in the Tribunal to appeal from a decision of the Tribunal to the Supreme Court if leave to appeal is granted by the court. An appeal can only be brought on a question of law.[1] As Buss JA noted in Paridis v Settlement Agents Supervisory Board,[2] an appeal 'on a question of law' is narrower than an appeal that 'involves a question of law'.[3] Paridis also settled the approach which the Supreme Court generally takes to the question of whether leave to appeal from a decision of the Tribunal should be granted. Generally speaking, an applicant for leave will be required to establish that the decision of the Tribunal is attended with sufficient doubt to justify the grant of leave and that substantial injustice would be imposed if the decision of the Tribunal is not corrected.[4]

4 So, the question which must be addressed in appellate proceedings brought pursuant to s 105 of the SAT Act is whether the Tribunal erred in law. Except in the limited class of case in which there is a full right of appeal,[5] the appellate jurisdiction of this Court does not extend to reviewing determinations of fact or the exercise of discretion by the Tribunal. So, unless the resolution of the question of law raised by the appeal necessarily results in the application for review being determined in a particular way, if an appeal from the Tribunal is successful it will usually be appropriate for the Court to remit the matter to the Tribunal for reconsideration according to law, and inappropriate for the Court to usurp the Tribunal's function of determining facts and making administrative decisions on their merits, taking into account any relevant policies and exercising any relevant discretions.

5 Having regard to the limited nature of an appeal from the Tribunal to this Court[6] it is appropriate to commence with a consideration of the reasons given by the Tribunal for its decision,[7] as the critical question is whether those reasons reveal error on a question of law. The Tribunal's reasons are to be construed in light of s 77(2) of the SAT Act, which requires the Tribunal's reasons to 'include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based'.

6 In its reasons, the Tribunal describes the land, which is situated between Harvey Road to the north, and Henry Street to the south. A diagram of the land showing the proposed subdivision and the areas which the Commission required to be the subject of a conservation covenant is attached to these reasons. The Tribunal noted that there are two dwellings on the land, each with separate vehicle access from Henry Street in one case, and Harvey Road in the other. The Tribunal found that the land is densely vegetated other than for some areas of cleared land adjacent to the dwellings. The Tribunal noted that it was not disputed that the vegetation was of 'very high value for biodiversity, conservation and connectivity to other native vegetation beyond the property boundaries'.[8] The Tribunal also made findings of fact with respect to the uses of land in the area surrounding the land in question which are unnecessary to recount in these reasons.

7 The Tribunal then addressed the planning framework applicable to the land in general and the various components of that framework in particular. The Tribunal drew particular attention to a policy promulgated by the Commission which includes what the Tribunal described[9] as 'in effect, a policy presumption against the subdivision of rural land'.[10] The Tribunal noted that the Commission's policy did allow for some circumstances in which subdivision might properly be allowed, including the circumstance of protecting and actively conserving places of cultural and natural heritage.[11]

8 In its summary of the cases advanced by the parties, the Tribunal noted that the Commission accepted that the restrictive covenant which it requires as a condition of subdivision approval 'would effectively sterilise more than half of each lot by permanently preserving an area of precisely identified remnant native vegetation'.[12]

9 After referring to the decision of McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd,[13] the Tribunal observed that the central issue in the case was whether the conditions imposed by the Commission reasonably and fairly related to the development permitted.

10 In that context, the Tribunal noted the applicants' submissions in the following terms:[14]

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.

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.

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.

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 [the applicable local planning scheme] 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.

11 The Tribunal noted the Commission's submission that, given the environmental status of the land, but for the conservation covenant and the obligations imposed by the covenant, no subdivision could properly be approved in accordance with the Commission's policies.[15]

12 In the portion of its reasons headed 'Analysis' the Tribunal referred to various previous decisions of the Tribunal relating to the breadth of the power to impose conditions on subdivision pursuant to s 143(1) of the Planning and Development Act 2005 (WA). In particular, the Tribunal referred to the following passage of the decision of the High Court in Lloyd v Robinson:[16]

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 Commission] 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.

13 The reasons for the Tribunal's decision to dismiss the application for review appear in the following passage:[17]

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.

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 [Commission's] Model Subdivision Conditions Schedule 2012 (Model Conditions) extend to cover heritage and environment matters (see Parts 6 and 8).

Here, the planning framework directs attention to similar environmental matters...

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 well-identified 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.

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

Remaining conditions in dispute

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.

14 In his reasons for refusing the appellants' application for leave to appeal from the decision of the Tribunal,[18] the judge set out the salient features of the Tribunal's decision and referred to the nature of an appeal from the Tribunal. The judge's reasons for rejecting the appellants' contention that the Tribunal erred in law in deciding that the conditions which the Commission imposed upon the approval of the proposed subdivision reasonably and fairly related to that subdivision appear from the following passages:[19]

I do not consider that the Tribunal erred in the way asserted by the appellant. The Tribunal's conclusion at [40] needs to be read in the context of the paragraphs which precede it, and in particular [38] and [39]. At [38], the Tribunal concluded that, while the nexus between a development and conditions can more commonly be seen as 'concrete, quantifiable and identifiable consequences and needs flowing from any subdivision', the required nexus may exist by reason of a relationship between the development and the achievement of what the Tribunal described as 'societal' aims expressed through planning instruments. As the last sentence at [40] demonstrates, the Tribunal concluded that the achievement of environmental regulation 'arises directly out of the fact of this subdivision'.

The appellants' concern is that, because there is to be no physical alteration to the land as a result of subdivision, the subdivision triggers no need for the condition and therefore the condition cannot be said to fairly and reasonably relate to the subdivision application. They submit that the Tribunal, in effect, concluded that the opportunity to impose the conditions was a 'privilege' of subdivision and that this was sufficient to establish the relevant nexus.

In reaching its conclusion, the Tribunal specifically referred to cl 6.5(d) of Department Control Policy 3.4 (DCP 3.4). DCP 3.4 has, amongst its policy objectives, the protection and improvement of environmental, landscape and cultural assets. It is clear from cl 6 of DCP 3.4 that subdivision of rural land is only to be considered in 'exceptional circumstances'. Implicit in the policy is the proposition that the fragmentation of rural land is undesirable.

As Kenneth Martin J observed in Macri v Western Australian Planning Commission [2014] WASC 153 [43]; it is both relevant and appropriate for a planning approval authority to have in mind possible future ramifications of dividing an existing lot.

It was not in issue that the proposed conditions served a valid planning purpose. The Tribunal did not err in concluding that the purpose to be served related to the proposed fragmentation of a rural lot. The Tribunal concluded, in effect, that the only justification for approval of the subdivision was the potential to achieve a planning objective. In reaching that conclusion, it had regard to the suite of planning instruments to which it had referred earlier in its reasons. It is not necessary, in order to satisfy the second requirement from Temwood, that the proposed development create a 'need', in a physical sense, for the subject matter of a condition. A condition will reasonably and fairly relate to a development if the policy framework under which the application for development is considered leads to the conclusion that the development should only be permitted if the condition is imposed.

I do not consider that, properly construed, the Tribunal's reasons simply conflated the notion of a 'quid pro quo' with satisfaction of the second of the tests identified in Temwood. The Tribunal was entitled to reach the conclusion which it did and did not err in doing so.

The power to impose conditions on an approval of subdivision The Planning and Development Act 2005 (WA)

15 In Western Australia the subdivision of land is regulated pursuant to Pt 10 of the Planning and Development Act 2005 (WA) (the Act). Section 135 of the Act prohibits the subdivision of any lot without the approval of the Commission. Sections 138 and 143 of the Act empower the Commission to grant its approval to a proposed subdivision subject to conditions which must be satisfied before the approval becomes effective. There are specific provisions in Pt 10 of the Act dealing with the imposition of specific conditions, but those provisions do not detract from the breadth of the power to impose conditions conferred by s 138 and s 143 of the Act. Section 151 of the Act entitles a person who is dissatisfied with a condition imposed by the Commission upon its approval of an application for subdivision to request the Commission to reconsider that decision. Section 251 of the Act provides that a person making such a request may apply to the Tribunal for a review of the decision made by the Commission after reconsidering the imposition of the relevant condition. That is the right of review that was exercised by the appellants in this case.

16 So, in summary, the Commission's power to impose conditions upon its approval of an application for subdivision of a lot is not constrained by any express provisions of the Act. However, the cases clearly establish that the power must be exercised in good faith and within constraints implicitly imposed by the nature of the purpose for which the Commission has been given the power to impose conditions upon the subdivision of land. In this case, the nature of those implicit constraints has not been contested - rather, the issue concerns their application to the circumstances of this case, and in particular whether the Tribunal properly understood those limits when exercising its obligation to review the decision of the Commission. It is, nevertheless, convenient to briefly review the cases on the subject.

17 As I have noted, the Tribunal cited and relied upon a passage from the reasons of the High Court in Lloyd v Robinson. The case concerned the validity of conditions imposed upon the subdivision of part of a larger portion of land situated south of Mandurah. Part of that larger portion had already been subdivided pursuant to earlier approvals. The Town Planning Board (which was a predecessor of the Commission) and subsequently the Minister on appeal purported to impose a condition requiring the developers to transfer to the Crown two areas of land outside the area of the land to be subdivided, in order that those areas could be used for public open space. The conditions were imposed pursuant to s 20 of the Town Planning and Development Act 1928 (WA) which then governed the subdivision of land and which, like the legislation currently in force, conferred a general power to impose conditions upon an approval of a subdivision.

18 The validity of the condition was challenged on two grounds - first, that the condition was beyond power because it had been imposed for a purpose extraneous to the subdivision and which was therefore beyond the power conferred upon the Board by the Act, essentially because the land to be ceded to the Crown was outside the area of the land to be subdivided; and second, because the Act should not be construed in a way which would effectively authorise the confiscation of private property without compensation.[20] At first instance, the first ground of attack upon the validity of the condition was rejected, and the second upheld. On appeal, the High Court held that both grounds of attack should have been rejected.

19 In relation to the contention that the condition was invalid because it was imposed for a purpose extraneous to the subdivision, the High Court observed:[21]

The assumption may be accepted that the statutory power to annex conditions to an approval of a subdivision does not extend to requiring the setting aside for public recreation of land which is so unrelated to the land to be subdivided, because of remoteness from it or some other circumstance, that there is no real connexion between the provision of the open space and the contemplated development of the area to be sub-divided. But in the present case it must not be forgotten that the subdivision for which the respondents sought approval was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market; and it was well within the limits of a proper understanding of the Board's functions under the Act to insist, at appropriate stages in the course of applications for approval to the constituent subdivisions, that open spaces be suitably located within the total area to satisfy reasonable requirements in respect of the total area. At what stages this should be done, what proportion of open space should be required, and where the open spaces should be, were questions within the discretionary judgment of the Board and, on appeal, of the Minister; and unless they were answered so unreasonably or improperly that the discretion could be said to have miscarried, there could be no ground upon which the courts would have authority to interfere. In the present case it seems to us to be plain that the requirements as to the 10 acres and the 15 acres were entirely relevant to the application for approval, and that being so they cannot be held beyond power on the ground that the land required to be transferred to the Crown lay outside the limits of the particular subdivision immediately proposed. Moreover, any suggestion that the power to impose conditions was exercised arbitrarily, or otherwise than in an endeavour in good faith to serve the purposes for which it was conferred, is answered by the trial judge's acceptance of evidence given before him by the Town Planning Commissioner to the effect that the spaces required were reasonable and proper and were arrived at by the Board in accordance with recognized principles of town-planning.

20 It is of some significance that the passage from Lloyd v Robinson cited by the Tribunal in this case comes from that part of the reasons of the High Court dealing with the rejection of the contention that the Act should not be construed as authorising the confiscation of property without compensation, and not from that part of the High Court's reasons which related to the issue before the Tribunal, which concerned the question of whether a condition imposed by the Commission reasonably and fairly related to the subdivision under consideration. The context of the passage cited by the Tribunal, namely, the asserted confiscation of property, explains the High Court's reference to a quid pro quo to be provided by a developer in return for the economic benefit to be derived from the grant of development approval - a concept upon which the Tribunal appears to have placed significant reliance.

21 It is also significant that the portion of the reasons of the High Court quoted by the Tribunal[22] are entirely consistent with the portion of the reasons I have set out in [19] above by referring to:

conditions which might be imposed ... bona fide within the 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;

a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first

conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purpose for which the discretion exists.

22 The decision in Lloyd v Robinson is entirely consistent with the subsequent decisions of the High Court, including in particular the subsequent decision in Temwood, all of which require that in order to be valid, there must be a real connection between the condition imposed and the proposed subdivision. These decisions will be discussed in turn.

Cardwell Shire Council v King Ranch Australia Pty Ltd

23 Cardwell Shire Council v King Ranch Australia Pty Ltd[23] also concerned a challenge to the validity of conditions imposed upon an approval to a proposed subdivision of land. In that case, the relevant legislation expressly required that any condition imposed must be 'reasonably required by ... the subdivision of the land' although, as we will see, in Temwood the High Court did not consider that such a provision materially altered the ambit of a power to impose conditions conferred in more general terms.

24 The case concerned an application to subdivide land into 19 blocks of various sizes. The challenged condition required the developer to contribute toward the cost of replacing a bridge and resurfacing a section of roadway providing access to the land to be subdivided. The judge at first instance found, as a fact, that the development of the land by way of subdivision would create more wear and tear on the road and the bridge.[24]

25 In that context, Gibbs CJ[25] observed:[26]

The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. This means that the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce - for example, in a case such as the present, the increased use of the road and of the bridge - and to impose such conditions as appear to be reasonably required in those circumstances.

In the present case, the learned District Court judge found, amongst other things, that traffic on the road and wear and tear on the bridge would be increased by the subdivision of the land. It is difficult to reconcile with that finding the statement that there is no requisite nexus, identification or relationship between the development and the purpose to which the contribution is to be put or the moneys expended on sealing Davidson Road. There seems to be an obvious connection between the effect of a subdivision which causes an increased use of roads and bridges and a condition that the subdivider should, by making a reasonable contribution, assist in defraying the costs incurred in meeting the consequences of the extra wear and tear that is expected.

26 So, the reasons given by the High Court in Temwood should be assessed in the context of the decisions in Lloyd v Robinson and Cardwell, each of which establish that the validity of a condition imposed upon an approval to the subdivision of land depends upon a connection being established between the purpose for which the condition was imposed, and the likely or possible consequences of the subdivision if approved. Whether or not there is such a connection in any case depends upon the particular facts and circumstances of that case. In Lloyd v Robinson, the condition imposed was valid because the land required was to be provided for use as a public open space by those who would occupy the land to be subdivided. In Cardwell, the condition imposed was valid because the need for improvements to the relevant road and bridge would be accelerated by the increased wear and tear on those facilities caused by the increased flow of traffic likely to follow from the subdivision of the land.

Western Australian Planning Commission v Temwood Holdings Pty Ltd

27 Temwood was, like Lloyd v Robinson, concerned with the validity of a condition imposed upon the subdivision of a portion of land forming part of a larger area of coastal land under subdivision and development near Mandurah. An area of land between the sea and the larger portion of land under development had previously been reserved for a public purpose, namely as a foreshore reserve, pursuant to provisions of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (the MRTPS Act). The challenged condition required the developer to cede to the Crown the land which had previously been reserved free of cost and without compensation. The condition was challenged on the grounds that it had been imposed for an extraneous purpose - firstly, for the avoidance of an obligation to pay compensation in respect of the reservation of the land for a public purpose and secondly, on the ground that the legislation should not be construed as empowering the expropriation of rights (in this case a right to compensation) without compensation. Those grounds of challenge correspond to the grounds of challenge in Lloyd v Robinson. The differences of opinion expressed by members of the court in relation to issues connected with the second ground of challenge[27] are not relevant to the issues in this appeal and can be excluded from consideration.

28 In relation to the first ground of challenge, after reviewing relevant authorities[28] McHugh J observed, in a passage cited by the Tribunal in this case:[29]

... [A] condition attached to a consent must reasonably and fairly relate to the development permitted.

A condition attached to a grant of planning permission will not be valid therefore unless:

1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.

29 It is clear from the terminology used by McHugh J and from his reasons read as a whole that he considered the three conditions of validity to which he referred to be quite separate and distinct so, even if the condition is imposed in the furtherance of a proper planning purpose, it will not be valid unless it reasonably and fairly relates to the development proposed. For reasons which will appear, failure to appreciate the quite different and distinct nature of these conditions of validity led the Tribunal and the judge at first instance into error.

30 On the question of whether the challenged condition reasonably and fairly related to the proposed subdivision, McHugh J relied upon the decision in Lloyd v Robinson for the proposition that the condition need not relate to the subdivision in question if the subdivision is one of a series of subdivisions of a larger parcel of land and the condition relates to the larger parcel of land as a whole.[30] Because the subdivision of the larger parcel of land as a whole necessitated the creation of the foreshore reserve, in his view the challenged condition related reasonably and fairly to the particular subdivision for which approval was sought.

31 In their joint reasons, Gummow and Hayne JJ cited the passage from Lloyd v Robinson which I have set out at [19] above in support of their conclusion that the challenged condition was related to the purpose for which relevant power was conferred upon the Commission because the subdivision created the need for a buffer zone to protect the scenery and the vegetation of the coastal strip.[31]

32 Callinan J cited the passage from Cardwell which I have set out at [25] above, and in that context expressed the view that the different wording of the legislation under consideration in that case did not result in the application of any different test to that properly applied under the Western Australian legislation:[32]

because it seems to me to be highly unlikely that the legislature of Western Australia would have intended to confer upon any planning authority in that State a power to impose conditions that were not reasonably required by the subdivision. If it were otherwise, the authority could arbitrarily impose a condition that had little or nothing to do with the subdivision, or was quite unreasonable having regard to the likely consequences of the subdivision.

33 Callinan J also cited with apparent approval the test for validity adopted by the House of Lords in Newbury District Council v Secretary of State for the Environment,[33] namely:[34]

that a condition must be for a planning purpose and not for an ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it.

34 Callinan and Heydon JJ disagreed with the majority on the question of whether the condition imposed was reasonably and fairly related to the proposed subdivision.[35] In their view, the planning purpose which necessitated the preservation of the foreshore strip had already been achieved by its reservation for that purpose under the provisions of the MRTPS Act. Because that purpose had already been achieved, in their view, a condition requiring that the land be ceded to the Crown without compensation was motivated by a fiscal purpose rather than a planning purpose.

35 In summary, in Temwood, all members of the court were agreed upon the test to be applied in order to ascertain the validity of a condition imposed upon the approval of a subdivision, which includes the requirement that the condition reasonably and fairly relate to the subdivision proposed. However, different views were taken with respect to the application of the test to the particular circumstances before the court.

The application of these principles to the circumstances of this case

36 For the reasons which follow, it should be concluded that the Tribunal did not apply the principles enunciated in the cases to which I have referred in its review of the condition imposed in this case.

37 Those principles require the establishment of a connection or relationship between the planning purpose for which the condition has been imposed, and the likely or possible consequences of the proposed subdivision. That connection or relationship must be established as a matter of fact. A relevant connection or relationship will not be established merely because the application for subdivision approval provides an opportunity or occasion to impose a condition in the furtherance of a proper planning purpose. Rather, the relevant connection or relationship must be between the planning purpose to be served by the condition and the likely or possible consequences of the proposed subdivision[36] - such as a need for public open space, or a foreshore reserve, or improved road access as a consequence of residential subdivision and development.[37]

38 In the present case, the only attention given by the Tribunal in its reasons to the likely consequences of the proposed subdivision is in that portion of its reasons which I have set out at [10] above. To the extent that those reasons reflect a finding of fact,[38] the Tribunal appears to have concluded that the applicants' contention that approval of the subdivision would have no practical consequences was 'broadly correct'.[39] Whatever be the proper construction of this portion of the Tribunal's reasons, it is significant that the Tribunal does not enunciate any finding of fact, at any point in its reasons, to the effect that the subdivision proposed would or might have any consequences with respect to the use or development of the land which could enliven a need to achieve or promote any particular planning purpose. In the context of the Tribunal's obligation to include its findings on all material questions of fact in its reasons, it must be inferred that the Tribunal made no such finding. Put another way, unlike the courts in each of the cases to which I have referred, the Tribunal did not identify or find any likely or possible consequence of the proposed subdivision which had any relationship or connection with the planning purposes to be achieved by the imposition of the conditions (which were the purposes of protecting the environmental values of the land and requiring electricity to be supplied to the land below the ground rather than above it).

39 Although the reasons of the Tribunal are at points difficult to construe, it seems that the Tribunal thought it was unnecessary to identify any factual connection or relationship between the consequences or effects of the proposed subdivision and the planning purpose served by the condition, if the condition served or enhanced 'equally valid, perhaps wider, "societal" aims expressed through planning instruments'.[40] Consistently with that view, the Tribunal reasoned that because the 'planning framework' directed attention to environmental matters and manifested a policy that the subdivision of rural land would not be approved unless an environmental benefit was provided as a 'quid pro quo' for the approval, the condition imposed arose 'directly out of the fact of this subdivision itself'.[41]

40 This process of reasoning elides the distinction between the requirement that the condition be imposed in the furtherance of a proper planning purpose, and the further requirement that the condition reasonably and fairly relate to the particular subdivision proposed. In effect, the Tribunal has concluded that because there is a general policy against the subdivision of rural land unless an environmental benefit or offset is provided as the price of the subdivision (a proper planning purpose), any application for the subdivision of rural land provides an appropriate occasion for the furtherance of that purpose, without more. However, the test enunciated in the cases to which I have referred, and acknowledged by the Tribunal, requires more than that the condition be imposed in the furtherance of a proper planning purpose. Rather, the condition and the purpose which it serves must reasonably and fairly relate to the particular development proposed. So, in the present case, the conditions imposed by the Commission in order to protect the environmental values of the land and to require electricity to be supplied below ground rather than above ground could only reasonably and fairly relate to the proposed subdivision if the likely or possible consequences of the subdivision would have some impact or effect upon the environmental values of the land or the desirability of electricity being supplied to the land below the ground rather than above it.

41 As I have noted, the Tribunal's failure to appreciate the need for a factual connection to be established between the likely or possible consequences of the subdivision proposed and the planning purposes to be served by the conditions imposed is evident not only from the Tribunal's enunciation of its process of reasoning, but also from the Tribunal's failure to express any findings of fact with respect to the likely or possible consequences of subdivision in this case which would have any impact or effect upon the need to protect the environmental values of the land or to supply electricity to the land below the ground rather than above it.

42 The erroneous approach taken by the Tribunal is also evident in the reasons given for upholding the validity of the condition requiring the supply of underground power to the land. In those reasons, the Tribunal referred to the lack of any serious challenge to the 'engineering safety and policy basis' for the condition, and to previous decisions in which the Tribunal has upheld conditions requiring infrastructure upgrades as consistent with orderly and proper planning.[42] Significantly omitted from the Tribunal's reasons is any finding of fact to the effect that the subdivision, if approved, would have any impact or effect upon the desirability of supplying electricity to the land under the ground rather than above it. The lack of any such finding supports the conclusion that the Tribunal reasoned that because a requirement that electricity be supplied underground supported a proper planning purpose, that requirement could be imposed on any convenient occasion, irrespective of whether the approval sought would have any impact or effect upon matters relating to the supply of electricity to the land in question.

43 When the Tribunal's reasons are viewed as a whole, it seems clear that the Tribunal has taken the view that the various instruments which together comprise the 'planning framework' relating to the subject land provide sufficient authority to the Commission to impose conditions in the furtherance of the planning purposes evident in those instruments whenever the occasion arises, irrespective of whether or not the occasion arises from a proposal which could or would have an effect or impact which would enhance the desirability of achieving the enunciated planning purposes. That approach is inconsistent with the principles enunciated in the cases to which I have referred and constitutes an error of law.

44 With respect, the judge at first instance made the same error, succinctly exposed in his assertion that:[43]

... A condition will reasonably and fairly relate to a development if the policy framework under which the application for development is considered leads to the conclusion that the development should only be permitted if the condition is imposed.

45 With respect to his Honour, that approach entirely elides the distinction between the first and second conditions of validity enunciated in Temwood and the principles previously enunciated in each of Cardwell and Lloyd v Robinson.

46 The Tribunal's error of law had the consequence that the appellants were, in effect, denied the review to which they were entitled. It follows that substantial injustice would be occasioned if the decision of the Tribunal were not corrected. Accordingly, this court should allow the appeal from the judge at first instance and set aside his decision dismissing the appellants' application for leave to appeal, and instead make orders granting leave to appeal, allowing the appeal, and setting aside the decision of the Tribunal.

47 Senior counsel for the appellants submitted that if the court came to this conclusion, it should not remit the matter to the Tribunal for reconsideration but should itself set aside the conditions imposed upon the approval of the proposed subdivision.[44] The course was said to be justified by the Tribunal's failure to find any facts capable of establishing a relevant connection or relationship between the conditions imposed and the proposed subdivision.

48 It will be apparent from the reasons I have given already that I accept that the Tribunal made no findings of fact capable of sustaining the required relationship or connection between the conditions imposed and the proposed subdivision. However, there is a distinct possibility, perhaps even a likelihood, that the Tribunal did not consider that such findings were necessary because of the error which was made with respect to the application and effect of the principles enunciated in the cases to which it referred. In its submissions in opposition to this appeal the Commission has identified a number of findings of fact which it contends were open on the evidence before the Tribunal and which are capable of sustaining the required connection or relationship between the conditions imposed and the proposed subdivision. If this court concluded that the evidence before the Tribunal was entirely incapable of sustaining any findings of fact which could provide a basis for the requisite connection or relationship between the conditions imposed and the proposed subdivision, it might be

appropriate to take the course proposed by the appellants. However, as I indicated at the commencement of these reasons, it is important that the court not usurp the functions imposed upon the Tribunal with respect to the ascertainment of relevant facts and the exercise of administrative discretions. Having reviewed the evidence before the Tribunal, I am not satisfied that it can be concluded with certainty that the evidence is incapable of sustaining any findings of fact which could establish the requisite relationship between the conditions imposed and the subdivision proposed.

49 Accordingly, the proper course to be taken is to remit the matter to the Tribunal differently constituted for reconsideration in accordance with these reasons. Given the course taken by the Tribunal in this case, it is appropriate to emphasise that the course of that reconsideration will require the Tribunal not only to make the findings of fact necessary to ascertain whether the conditions imposed by the Commission can be lawfully imposed, but also to itself consider and produce the correct and preferable decision with respect to the nature and extent of the conditions to be imposed upon the subdivision of the land. I express that view because the reasons given by the Tribunal suggest that it considered the ambit of its review to be limited to the lawfulness of the conditions imposed by the Commission. While that approach might have responded to the nature of the case presented to the Tribunal, the stance adopted by an applicant in any particular case cannot detract from the Tribunal's overriding obligation to 'produce the correct and preferable decision'[45] which must inevitably require a review of the decision on its merits.

[1] Unless the decision has the effect of depriving a person of their capacity to lawfully pursue a vocation - s 105(2), s 105(13) SAT Act.

[2] [2007] WASCA 97; (2007) 33 WAR 361.

[5] Namely, where the decision has the effect of depriving a person of their capacity to lawfully pursue a vocation - s 105(2), s 105(13) SAT Act.

[6] In all but the exceptional class of case to which I have referred.

[7] Reid and Western Australian Planning Commission [2015] WASAT 35 (Tribunal's reasons).

[8] Tribunal's reasons [10], citing Albany Regional Vegetation Survey 2010.

[10] The subject land is zoned 'rural' under the applicable local planning scheme.

[13] [2004] HCA 63; (2004) 221 CLR 30.

[14] Tribunal's reasons [27] - [30].

[16] [1962] HCA 36; (1962) 107 CLR 142, 154; cited in the Tribunal's reasons at [36].

[17] Tribunal's reasons [37] - [42].

[18] Reid v Western Australian Planning Commission [2015] WASC 293 (Judge's reasons).

[20] The same two grounds were the basis of the attack upon the validity of the conditions imposed in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 - see below.

[22] Tribunal's reasons [36], quoting Lloyd v Robinson (154).

[23] [1984] HCA 39; (1984) 53 ALR 632.

[25] With whom the other members of the court agreed.

[27] Which will be reconsidered by the High Court following the grant of special leave to appeal from the decision of this court in Western Australian Planning Commission v Southregal Pty Ltd [2016] WASCA 53.

[28] Including Newbury District Council v Secretary of State for the Environment [1981] AC 578 and Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87.

[29] Temwood [57], citing Newbury District Council.

[33] (1981) AC 578.

[35] Temwood [157] (Callinan J), [186] (Heydon J).

[36] Including the subdivision of a larger portion of land of which the relevant subdivision forms a part - see Lloyd v Robinson and Temwood.

[37] See Lloyd v Robinson, Temwood and Cardwell respectively.