"Arrangements being made for the provision of underground 3-phase electricity to the lots approved under this application, except for proposed Lot 1 for which a connector box only shall be provided to the satisfaction of the Western Australian Planning Commission."

Bakker v City of Nedlands [2005] WASAT 106

Cinanni v Western Australian Planning Commission (2003) 34 SR (WA) 88

Hill v State Planning Commission (1994) 10 SR (WA) 354

Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1

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

Australian Real Estate Investment Ltd v Western Australian Planning Commission [2003] WATPAT 121

Barking Owl Pty Ltd as trustee for the Barking Family Trust v City of Fremantle [2004] WATPAT 188

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

Matijsevic v Logan City Council [1984] 1 QD R 599

Morrissey v State Planning Commission (1994) 11 SR (WA) 35

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

MR J JORDAN (SENIOR SESSIONAL MEMBER), MR P McNAB (MEMBER):

1 This application, in effect, seeks relief from conditions 1, 2, 16 and 18 imposed by the Western Australian Planning Commission ("the respondent") on the approval by the respondent of the subdivision of Lot 874 Nelson Street, Bridgetown ("the subject land"). These conditions require:

"(1) Satisfactory arrangements being made with the Western Australian Planning Commission for the upgrading of Polly Dakin Drive and Eastcott Avenue.

(2) Satisfactory arrangements being made with the [Western Australian Planning Commission] for the upgrading of the intersection of Nelson Street and Polly Dakin Drive.

(16) Arrangements being made for the provision of underground electricity to the lots approved under this application, except for proposed Lot 1 for which a connector box only shall be provided to the satisfaction of the Western Australian Planning Commission.

(18) Arrangements being made for the removal and relocation of power supply plant or equipment located on or near lots approved under this application to the satisfaction of the Western Australian Planning Commission."

2 The subject land is about 1.5 kilometres west of the Bridgetown town centre and is owned by Ranald Ian Stewart (" the applicant"). It is 8.5 hectares in area and has road frontage on all of its boundaries. To the west is Bussell Street and to the north-west and north is Nelson Street. These are bitumen roads which provide the main access route to Bridgetown from lots in this locality. To the east and south-east is Polly Dakin Drive, a narrow bitumen road that also serves the cemetery. To the south is Eastcott Avenue, a gravel road. Access to the house and shed on the subject land is from Eastcott Avenue.

3 Land reserved for a local cemetery fronts the full length of the southern side of Eastcott Avenue. About one quarter of this land at the eastern end is in use; the remainder is bush. East of Polly Dakin Drive is land owned by the Shire of Bridgetown-Greenbushes ("the Shire"). This land was referred to in the proceedings as the "Education Endowment Land" and comprises eight lots with a total area of approximately 80 hectares. Two of these lots front Polly Dakin Drive. The Shire has endorsed a subdivision guide plan for the eventual subdivision of the education endowment land into some 140 rural residential lots.

4 The respondent granted conditional approval for the subdivision of the subject land into 19 rural residential lots. Seventeen of the lots are between 3037m² and 4517m², one is 8729m² and the lot with the house and shed is 15800m².

5 The applicants sought review of the conditions set out above by way of an appeal to the Town Planning Appeal Tribunal ("the former Tribunal") on 29 November 2004 pursuant to the Town Planning and Development Act 1928 (WA) as then in force. On 1 January 2005, the former Tribunal ceased to exist and this Tribunal took over the appeal as a review under the State Administrative Tribunal Act 2004 (WA): see s 167.

6 The subject land is zoned "Special Residential" and "Special Additional Use" under the Shire of Bridgetown-Greenbushes Town Planning Scheme No 3.

7 In its submission to the Tribunal, the respondent made reference to several of its policies, the relevant parts of which may be summarised (or highlighted) as follows.

8 Development control policy 1.1 - "Subdivision of Land": the respondent noted that the relevant clauses of this policy say that it will impose conditions to require that the lots to be created be provided with public utility services appropriate to the intended use, and may require that subdividers make an appropriate contribution, by land, or easements or construction or monetary contribution as is appropriate.

9 Development control policy 1.7 - "General Road Planning": this policy advises that where the respondent and a road authority agree that a subdivision should not proceed unless access roads are upgraded or constructed an appropriate condition will be imposed.

10 Development control policy 2.5 - "Special Residential Zones": highlighted from this policy was the statement that special rural lots are considered to be essentially residential and should be provided with the type and standard of services typical of normal residential subdivisions.

11 Planning Bulletin No 18 - "Developer Contributions for Infrastructure": Reference was made to the principle of the subdivider providing or contributing to the cost of infrastructure. Particular reference was made to the requirement for electricity supply to be underground and at 100 per cent borne by the subdivider. The proportion of road costs to be paid is to be related to the effect of the subdivision.

12 The Tribunal was also referred to a relevant local government authority document, namely Policy E.2 "Provision of Subdivisional Roads and Streets". This policy sets out that the Shire will seek contributions from subdividers for the upgrading of roads that provide relevant access.

13 In December 2000, the respondent approved an earlier application to create the same lot configuration (WAPC Ref: 114998). This approval expired on 12 December 2003.

14 In July 2004, the applicant lodged with the respondent a fresh application for approval of this lot layout. This was granted by the respondent on 28 September 2004, subject to certain conditions including those from which the applicant is now seeking relief.

15 At the hearing before the Tribunal the applicant appeared on his own behalf. The respondent was legally represented. The Tribunal by consent ordered that closing submissions be furnished in writing. The applicant engaged solicitors to prepare closing submissions on his behalf.

16 The applicant seeks to have the conditions deleted as "ambulatory", that is, the applicant submitted that the conditions under review "lacked certainty or finality". The question of certainty is dealt with below. The applicant relies on Hill v State Planning Commission (1994) 10 SR (WA) 354, a decision of the then Town Planning Appeal Tribunal which emphasised the need to avoid conditions expressed in terms of leaving a further exercise of discretion to a third party, such as a statutory authority.

17 Further, the applicant submits that this Tribunal should not then go on to vary or alter such conditions in effect to send a message to the respondent by "draw[ing] a line in the sand". This matter is also dealt with below in terms of the statutory role and powers of the Tribunal.

18 Putting to one side any other alleged defects of the conditions, in fact none of these conditions relevantly defer or abdicate to a third party. The explanation may be found in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181, another decision of the former Tribunal which this Tribunal intends to follow. In that decision it was said, after referring to the apparent impact of Hill (supra), at 183 - 184:

"The Commission has worded Condition 2 in this appeal to require that arrangements as to the upgrading of the road be to the satisfaction of the Commission and not a third party. At the end of the condition is the abbreviation (LA) which no doubt means 'local authority' ... The Commission has reserved to itself the ultimate duty to be satisfied, even though in practice, it has left it for the subdivider to work with the third party to obtain the terms of that satisfaction. This emphasis grants to the Commission the ultimate discretion as to the discharge of the condition."

19 As will appear below, reading the conditions in light of the advice notes accompanying the conditions and the evidence of both parties as to what was required or intended, all of the conditions essentially pass the Perrymead (supra) standard.

20 On the role of consistency in decision-making in this Tribunal in relation to decisions of the former Tribunal see: Bakker v City of Nedlands [2005] WASAT 106, at [25] - [27].

21 The discussion that follows concerning the suitability and validity of the various conditions is informed by the decision of the then Town Planning Appeal Tribunal in Perrymead Investments Pty Ltd v Western Australian Planning Commission (supra), and the authorities therein discussed, which this Tribunal proposes to follow. In that decision, at 186, the former Tribunal said:

"[a] condition can be said to reasonably relate [to the proposal] 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."

22 See also, Cinanni v Western Australian Planning Commission (2003) 34 SR (WA) 88.

23 The conditions in question have each been examined in the light of their relevant effect and their connection or relationship with the approved subdivision. Moreover, each condition when read in context could not be said to be initially void for uncertainty which is a test satisfied "only if no meaning or sensible or ascertainable meaning can be found": Perrymead (supra) at 367. And, even if such a situation were found to be the case the role of the Tribunal and the powers available to it means that each condition can be - if not ought to be - appropriately varied in reaching the correct and preferable decision: see State Administrative Tribunal Act 2004, section 27 and section 29. The same approach would apply also if the conditions had been found to be "ambulatory".

24 As will appear below, each of the conditions has been in fact varied by the Tribunal in light of the evidence before, and the findings of, the Tribunal.

"Satisfactory arrangements being made with the Western Australian Planning Commission for the upgrading of Polly Dakin Drive and Eastcott Avenue."

26 The respondent included with its decision to approve the subdivision an advice to the applicant stating that the Shire of Bridgetown-Greenbushes had advised:

"In regard to Condition No 1, the contribution from the subdivider for the required road works is 50 per cent for the upgrading of Polly Dakin Drive and 100 per cent for the upgrading of Eastcott Avenue. Both roads are to be upgraded to a 6 metre wide sealed standard."

27 The Tribunal will consider each of the specified roads in turn.

28 In his witness statement, the applicant submitted that a one third contribution to the widening of the bitumen of Polly Dakin Drive would be appropriate given the use of the road by others, particularly cemetery traffic, and because of the extent of the subdivision planned for the Education Endowment Land.

29 In the course of his evidence the applicant said that a contribution by him of 50 per cent of the upgrading cost was acceptable.

30 The respondent said in its final submissions that the Shire had advised that the contribution required is $9128, which was said to be 47.2 per cent of the upgrading cost.

31 The applicant, in his submissions, objected to paying this amount. A comparison was drawn between this amount and an amount of $4700 - estimated as at November 2000 - referred to in a letter from the Shire to Techyfield Pty Ltd (a company connected with the applicant) dated 2 April 2001, which was stated as a 50 per cent contribution to the upgrade of Polly Dakin Drive. The applicant says that there is no evidence to justify an increase in cost of the proportion now required, and reverted to his original position of a one third contribution.

32 The Shire did not provide any information on how it arrived at either the 2000 figure or the 2005 estimate. The applicant also did not provide any costings of his own, but simply stated that he rejected the Shire's 2005 figure and that he would prefer a modest increase in the 2000 figure. The respondent has made no independent investigation and simply adopted the approach of the Shire. There is not available to the Tribunal sufficient evidence to satisfactorily test the figures proffered by the parties, so the Tribunal must do the best it can with the evidence that the parties have provided.

33 It is not possible for the Tribunal to specify with mathematical precision the contribution that the subdivider should make. The concern of the Tribunal in this instance is, in part, to satisfy itself that the condition as imposed is not so unreasonable that no reasonable authority would require it. There is nothing before the Tribunal to suggest that the condition is relevantly unreasonable. The Tribunal is satisfied that a road upgrading condition is appropriate, notwithstanding that others will benefit, and is consistent with policy referred to above. In summary, the burden imposed is not considered by us to be so relevantly disproportionate or so unrelated to the subdivision approved that the condition should not be imposed.

34 We find that the correct and preferable decision is that the condition should set out that $9128 is required as a 50 per cent contribution to the upgrading of Polly Dakin Drive. (The Tribunal has used this figure as it has been relatively recently supplied to the respondent, and directly relates to the proposed subdivision in recent circumstances and has not been, we think, relevantly undermined by the applicant.)

35 Eastcott Avenue has a formed gravel surface for about 350 metres from Bussell Street in the west to the bitumen at the east end that serves the used part of the cemetery. The applicant's primary contention was that this condition should be struck out as ambulatory (see above) but if that was not accepted the contribution required by the Shire was excessive.

36 The applicant said that, if necessary, he would accept the necessity to provide sealed road access to the lots in the subdivision. He argued, however, that it was not necessary to seal the 80 metres of road between the entrance to proposed Lot 12 to the west and the next entrance to the east, which is to proposed Lot 1. The entrance to Lot 1 is at the extremity of the bitumen construction serving the cemetery. It was submitted by the applicant that if the future owners of Lot 12 and the other lots to the west wished to use a bitumen road to get to town then they could travel west to Bussell Street, turn north and then east on to Nelson Street.

37 In the circumstances of the subject land, especially considering its location relative to Bridgetown, the applicant's proposal that a section of road should be left as gravel cannot be accepted. It is against sound planning principles to have a section of frontage road in a rural residential subdivision constructed to a lesser standard simply because it does not immediately serve a crossover and the land owners would have available an alternative, but more circuitous, bitumen route. Any upgrading of Eastcott Avenue must include bitumen for the full frontage so that which ever way the new owners turn on leaving their lot they have a standard of road consistent with the overall road system to which their frontage road is connected.

38 The Shire advised the applicant that it had a policy that where the subdivider is to pay 100 per cent of road upgrading and the subdivider asks the Shire to do the work as opposed to a private contractor, the Shire would charge a 30 per cent profit margin. Why a 30 per cent margin and how this related to the profit margin of private contractors was not revealed. The applicant argued that this 30 per cent was unreasonable and that the Shire should charge only costs, as occurred when the Shire was responsible for part of the upgrading.

39 The Tribunal is not in a position to indirectly dictate to the Shire what its policies are to be on charging for road upgrading. An equitable solution appears to be that the subdivider is afforded an opportunity to seek quotes and accept the most competitive. This he is able to do, whether it is from the Shire or a private contractor.

40 The applicant also contended that the Shire's requirement that he upgrade the drainage at the junction of Bussell Street and Eastcott Avenue was excessive because it had recently been upgraded. He said that his drawings for upgrading Eastcott Avenue did not require the drainage at the junction to be redone. Mr Clynch, for the Shire, contested this, saying that his officers did require this additional work because of the design that the applicant had submitted.

41 None of the witnesses had engineering expertise. On the comments made, it was apparent that the applicant should not have to enlarge the drainage works in place at the intersection if the road upgrading were to be designed so as to provide the necessary drainage elsewhere on the length of the road. Fundamentally, this is a design matter for resolution between the appropriate experts.

42 The applicant's contention that the upgrading and drainage of Eastcott Avenue could be accomplished without replacing the existing upgrading at the intersection is accepted by the Tribunal.

43 Condition 1 will be reworded appropriately to reflect the above findings.

"Satisfactory arrangements being made with the WAPC for the upgrading of the intersection of Nelson Street and Polly Dakin Drive."

45 For this condition the respondent said the Shire had advised that:

" ... the contribution required from the subdivider for these works is 50 per cent. The Shire accepts full responsibility for the design of the intersection works."

46 It is the applicant's submission that he should make no contribution to the upgrading of the intersection, pointing out that the previous approval did not include such a condition. Both parties have referred to the corner in question as an intersection, even though it is more properly a junction as Polly Dakin Drive terminates at Nelson Road.

47 This junction has what was called a "slip road" design, this being because Polly Dakin Drive feeds into Nelson Road at an oblique angle rather than at the perpendicular. There was anecdotal evidence from both parties that the junction of the two roads is inadequate because of the design and the narrowness of the carriageway. The comments by the parties about vehicle accidents at the junction were too inconclusive to be useful. It is accepted, however, that such "slip road" junctions are inherently unsafe and it is sound practice to have them reconstructed.

48 Notwithstanding the views of Mr Clynch of the Shire (a witness for the respondent) to the contrary, it is not considered that subdivision approval makes unacceptable an intersection design that until now was acceptable. The intersection has been badly designed since being built many years ago. The subdivision will increase traffic at the intersection and so the probability of an accident will increase.

49 It has been determined by this Tribunal that the applicant ought to be required to make a contribution to the upgrading of Polly Dakin Drive and Eastcott Avenue. Both of these roads feed into this junction. In such circumstances, this tends to lead to the conclusion that a contribution to the upgrading of the junction in question is also reasonable and relevantly relates to the subdivision. Such a contribution is warranted notwithstanding that the junction requires redesigning. Any contribution, however, should not include any design work associated with the upgrading.

50 It is the respondent's submission that the applicant should pay the full cost of upgrading and may be able to recover costs from future developers of the land opposite under s 28A of the Town Planning and Development Act 1928.

51 The subdivision of the education endowment land is not so remote as to be an unrealistic consideration. It is the view of the Tribunal that the respondent can look to that subdivider for a contribution within a reasonable time. Having the applicant rely on s 28A is not appropriate in this instance.

52 Condition 2 is therefore found, when properly interpreted, as requiring the Shire to meet redesign costs and the applicant meeting 50 per cent of construction costs. That condition, in its reworded form to avoid any doubt as to its intended meaning or effect, is reasonable.

Condition 16 - provision of underground electricity

"Arrangements being made for the provision of underground electricity to the lots approved under this application, except for proposed Lot 1 for which a connector box only shall be provided to the satisfaction of the Western Australian Planning Commission."

54 Mr De Laeter of Western Power said in his witness statement:

"While it is not stated expressly within condition 16, it is a requirement that all new subdivisions within 500 m of a 3-phase power supply connect to a 3-phase power supply."

55 The uncontradicted evidence given was that modern homeowners are now better served by 3-phase power because of the proliferation of appliances, air conditioning and pools that they have in their homes. It is therefore appropriate that this be provided at subdivision as is now occurring in residential and rural residential subdivisions at the development front.

56 The applicant pointed out that the previous approval required only that the subdivider connect the subdivision to single phase power, currently near to the subject land. The 3-phase power is said to be some 430 metres distant on Nelson Street beyond the education endowment land.

57 The earlier approval included a condition requiring the provision of underground power and the advice the subdivider then received was that this was to be single phase power.

58 The respondent's decision on the earlier approval was valid for a period of three years within which time conditions are to be satisfied and the diagram or plan of survey lodged. Such a time constraint within which to act on a planning decision is common practice and consistent with the general principle of assessing subsequent applications in the light of planning and development objectives of a locality as they evolve over time.

59 The earlier subdivision approval for the subject land lapsed on 12 December 2003. The application for a fresh approval was lodged 30 July 2004 and in these circumstances the Tribunal agrees with the respondent that changes in the planning for the locality are to be considered, but any changes must be generally known or available so that any subdivider can be possessed of the appropriate knowledge to make an informed decision.

60 The applicant submitted that Western Power's dissemination of its change of policy to 3-phase does not appear to pass the test set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1. For example, the only evidence of any change in the policy as regards the public record was an e-mail of 14 May 2002 from a network engineer of Western Power to a select group of members of the Urban Development Institute of Australia.

61 That, however, is not the end of the matter. Prior to the fresh application being lodged, the applicant's own electrical contractor contacted Western Power and was told of the new requirement for 3-phase power. When asked, the applicant said that he had been made aware of the situation when the contractor started to talk about designing 3-phase power. The applicant's concern was that it was not clear that the power had to come underground from a transformer nearly 500 metres away.

62 On balance, the Tribunal is not persuaded that the condition as properly understood is either inconsistent with proper planning principles, or so opaque as to warrant the Tribunal disregarding the policy underlying it. In particular, the fact that the applicant's own expert was advised, apparently as a matter of routine, about the 3-phase policy tends to suggest that the policy was sufficiently well established to require appropriate consideration to be given to it. The condition should stand and will be reworded appropriately.

Condition 18 - relocation of power supply plant and equipment

"Arrangements being made for the removal and relocation of power supply plant or equipment located on or near lots approved under this application to the satisfaction of the Western Australian Planning Commission."

64 This condition is concerned with the location of two poles and the overhead wires connecting to them at the western end of the subject land. These two poles have between them a third pole not on the subject land. The sketches provided were not to scale but comment was made that it would be necessary to move the poles 700 millimetres to be outside the boundary.

65 In their respective closing submissions both the applicant and respondent referred to discussions that they had had on the possibility of the boundary of the subject land being relocated so that the poles would be about 500 mm outside the boundary in the road reserve. A 3 m wide easement would then be created on the subject land within which activity would be constrained for safety reasons.

66 From the comments made at the hearing this solution was discussed so that significant vegetation in the existing verge would not have to be disturbed by relocating the poles. The discussions between the parties came to nothing.

67 The previous approval initially had a similar condition imposed. The condition was removed on appeal by the then Minister for Planning.

68 The condition would require the applicant to either have the boundaries resurveyed or to shift the poles. At best the information on the location of the poles and wires was diagrammatic and neither party provided information on the vegetation or the particular consequences of relocating the boundaries and imposing easements.

69 The respondent has endorsed the submission of Western Power that the condition should be imposed and an easement included on the subject land consistent with Western Power policy on line maintenance and safety. Both of these reasons were ill defined given the need for an easement in any event and the proximity to the boundary that would occur whether or not the condition were to be imposed.

70 There was nothing presented in the evidence given to the Tribunal to show that the circumstances now were so different from those at the time of the previous approval that this condition is now warranted.

71 In the Tribunal's view this condition should be deleted.

72 From our examination of this matter, in summary we have concluded as follows:

(1) That while the conditions the subject of the application for review might have been better expressed, they are not so indeterminate that they should be deleted for uncertainty. Nor are they "ambulatory" as alleged. In any event, where it has been necessary they have been varied either so as to better reflect their intended meaning, or the evidence before, and the findings of, the Tribunal.

(2) The subdivider's share of the cost of upgrading Polly Dakin Drive is appropriately set at 50 per cent and a contribution of not more than $9128 would satisfy this condition.

(3) The subdivider should be required to upgrade the full length of the unsealed section of Eastcott Avenue but it should not be necessary to reconstruct the drainage in the recent upgrading work at the junction with Bussell Street.

(4) A condition requiring underground power 3-phase is appropriate.

(5) The circumstances relevant to the location of the power supply equipment the subject of condition 18 has not changed since the earlier subdivision approval. This condition should be deleted.

73 The order of the Tribunal is:

74 The application for review is allowed and the decision under review is varied as follows:

(1) Condition 1 is reworded to read:

"Satisfactory arrangements being made with the Western Australian Planning Commission for a contribution of $9128 upgrading of Polly Dakin Drive and the upgrading of Eastcott Avenue."

"Satisfactory arrangements being made with the WAPC for the upgrading of the intersection of Nelson Street and Polly Dakin Drive by the subdivider meeting 50 per cent of the construction costs only."

"Arrangements being made for the provision of underground 3-phase electricity to the lots approved under this application, except for proposed Lot 1 for which a connector box only shall be provided to the satisfaction of the Western Australian Planning Commission."

(4) Condition 18 is deleted.

I certify that this and the preceding 16 pages comprise the reasons for decision of the Tribunal.

______________________

J Jordan

Senior Sessional Member