Court of Appeal (WA)|2001-04-30|Before: Miller J

Western Australian Planning Commission v Erujin Pty Ltd [2001] WASCA 139 (30 April 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WESTERN AUSTRALIAN PLANNING COMMISSION -v- ERUJIN PTY LTD [2001] WASCA 139

BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION

Town Planning - Approval for subdivision of two lots - Condition imposed that one lot be ceded to the Crown - Whether imposition of that condition consistent with orderly and proper planning - Appeal against decision of Town Planning Tribunal that imposition of the condition not supported by relevant planning considerations - Whether Tribunal erred in failing to have regard to larger proposal for development of land - Whether Tribunal failed to have regard to subdivision guide plan - Whether Tribunal had regard to relevant Town Planning policies - Whether Tribunal in error in considering absence of current management plan for the land - Whether Tribunal's reasons adequate in law

Daniels v TPB Town Planning Appeal Tribunal, 15 May 1980; Appeal 29 of 1979

Lake Karrinyup Country Club Inc v Valuer General, unreported; SCt of WA; Library No 960515; 13 September 1996

Leoni v Cairns City Council (1978) 37 LGRA 87

Maritime Service Board NSW v Liquor Administration Board (1990) 21 NSWLR 180

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

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

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

Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165

Renstone Nominees v Metropolitan Region Planning Authority (1986) 21 APA 12

Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WATPAT 4

1 MILLER J: The appellant is the owner of a property at Lot 13 Keenan Street, Darling Downs, which comprises 132.157 hectares. The Wungong Brook runs through the property. The brook and its foreshore reserve are reserved for parks and recreation under the Metropolitan Region Scheme ("the MRS").

2 In September 1999 the respondent lodged with the appellant an application for subdivisional approval in respect of the property. The application sought to create two lots, one of which would be 125.117 hectares in area and the other 7.04 hectares. This latter lot was to include the Wungong Brook and its foreshore reserve, being a strip of land approximately 60 metres wide and representing some 5.33 per cent of the total area of the land.

3 By notice dated 16 November 1999 the appellant approved the respondent's application but subject to certain conditions. The application was the subject of reconsideration on 10 May 2000 when it was again approved subject to the same terms and conditions. One of those conditions (condition 1) had the result that although the subdivision was approved, the smaller of the two lots created by the subdivision was ceded to the Crown. Condition 1 was in the following terms:

"The proposed 7.04 hectare lot to reflect the boundary of the MRS parks and recreation reservation and being shown on the diagram or plan of survey as a 'reserve for recreation' and vested in the Crown under section 20A of the Town Planning and Development Act, such land to be ceded free of cost and without any payment of compensation by the Crown."

4 The respondent appealed to the Town Planning Appeal Tribunal ("the Tribunal") against the imposition of the condition. There were several grounds of appeal, but amongst them was the contention that there was no justification in law or planning or principle for the requirement that the MRS reserve be ceded free of cost. It was contended that in the circumstances the imposition of the condition was both unreasonable and inappropriate.

5 Before the Tribunal the appellant contended that the condition imposed upon the subdivision was consistent with orderly and proper planning and in particular with three specific policies of the appellant, they being the Special Residential Zones Policy (DC 2.5); the Public Open Space in Residential Areas Policy (DC 2.3) and the Rural Land Use Planning Policy (DC 3.4). The appellant also contended that the condition imposed upon the subdivision could not be said to be onerous because the land ceded in consequence of the condition had no developmental potential, embracing as it did a floodway/flood plain and remnant vegetation.

6 The Tribunal upheld the respondent's appeal. The primary basis upon which the appeal was upheld was that the imposition of condition 1 was not supported by relevant planning considerations. The Tribunal also observed that the evidence before it did not satisfy it that the management and maintenance of the reserved land demanded that it be ceded to and owned by the Crown. Whether the Tribunal was required to or should have addressed this question is an issue in this appeal.

7 The appellant appeals to this Court from the decision of the Tribunal on the following grounds:

"1. The Tribunal, in considering whether condition 1 was supported by relevant planning considerations, erred in law by failing to have regard to a mandatory relevant consideration, namely the subdivision of the subject land contemplated by the Subdivision Guide Plan, which formed part of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2.

2. The Tribunal erred in fact and law in finding that it was not necessary to have regard to the future subdivision of the subject land contemplated by the Subdivision Guide Plan.

3. The Tribunal erred in law in failing to have due regard to statements of planning policy, namely, Policy DC 3.4 (clause 4.3.3(xvii)), Policy DC 2.5 (clause 3.2.3(b)) and Policy DC 2.3 (clauses 3.1, 3.2 and 3.3), which are incorporated into the State Planning Framework Policy prepared pursuant to s 5AA of the Town Planning and Development Act 1928 ('the Act'). Section 53(1) of the Act requires the Tribunal to have due regard to a statement of planning policy prepared pursuant to s 5AA of the Act in determining any appeal.

4. The Tribunal erred in fact and law in deciding that condition 1 should not be imposed because the evidence did not satisfy it that management and maintenance of the reserved land demanded that the land be ceded to and owned by the Crown.

5. The Tribunal failed to give sufficient reasons for its decision that the imposition of condition 1 was not supported by planning principles."

Before considering these grounds it is convenient to have regard to the history of the matter.

8 Prior to 1992 the respondent's land was zoned rural. As early as 1989 the respondent had approached the Shire of Serpentine-Jarrahdale with a view to achieving a special rural subdivision with subdivision of the southern portion of the land into 39 lots of a minimum area of 2 ha. However, in April 1992 Amendment No 5 to the Shire's Town Planning Scheme No 2 rezoned the land from rural to special rural and public open space. The Amendment was initiated by consultants acting on behalf of the respondent.

9 The next step was the preparation of Amendment No 32 which was again initiated by consultants for the respondent in 1993. It initially proposed rezoning of the northern portion of the subject land to facilitate subdivision into some 33 lots which would range from 0.73 ha to 3 ha with public open space of 8.3 ha. The proposed subdivision which accompanied this Amendment was modified at the request of the Shire in order to be consistent with its rural strategy. The rural strategy then identified the land as being within a rural landscape buffer precinct which required a minimum lot size of 2 ha. At the time the respondent's consultants contested the suggestion that public open space should be given up, referring to the fact that large areas of land were already proposed to be surrendered along the Wungong Brook and in the previous Amendment No 5. In October 1993 the respondent's consultants advised the Shire that the respondent agreed in principle to protect rural open space along the Wungong Brook in the form of a foreshore reserve or walking/bridle trails.

10 Negotiations with the Shire in relation to the proposed Amendment and subdivision continued. In the course of those negotiations it became clear that the Shire clearly intended that an area of public open space should be ceded without compensation in return for approval of the subdivisional plan. The Shire indicated that provision of public open space without compensation to the respondent would negate the requirement for contribution to a management trust for development of other public open space on the land in question.

11 By letter dated 10 March 1995 the appellant advised the respondent of a proposed amendment to the MRS which would change the zoning of the respondent's property. It pointed out that the MRS was the basis for regional planning in the Perth metropolitan area, defining broad land use zones and reservations with amendments from time to time to reflect "changing needs with Perth's growth". The purpose of the proposed amendment was said to be to update the MRS for a number of land areas in the south-east corridor of the metropolitan region. One of the changes proposed was to transfer land along the foreshore of the Wungong Brook between Armadale Road and the South West Highway from the rural zone to the parks and recreation reservation. Reasons for the proposed amendment were set out in some detail and it is unnecessary to repeat them.

12 On 30 May 1995 the respondent applied to subdivide the land north of the Birriga Drain (a drainage area adjacent to the Wungong Brook). This application was refused primarily because the proposal did not accord with the requirements of the Shire of Serpentine-Jarrahdale local rural strategy pertaining to lot sizes required under rural living A and B designation of the land, but also because the subdivision was considered to inadequately acknowledge that portion of the land centred on Wungong Brook was reserved for parks and recreation under the MRS. The refusal of the application was dated 16 June 1997. Meanwhile, on 22 November 1996 an MRS Amendment (No 979/33) was gazetted to reserve land adjacent to the Wungong Brook for parks and recreation.

13 On 16 February 1998 the respondent made application for approval to commence development of a single dwelling and shed on the reserved part of the land. The plan annexed to the application showed that the dwelling and shed would be in very close proximity to the Wungong Brook and not surprisingly, on 24 June 1998, the appellant refused approval to commence development on the following grounds:

"1 The proposed development is located within a floodway and would be subject to risk due to flooding. Moreover, the proposed development would obstruct the free passage of floodwater thereby creating a flood hazard downstream.

2 The land on which the residence and shed is proposed to be constructed is reserved for Parks and Recreation under the MRS and approval of the proposed development would not be consistent with the purpose and intent of the reservation."

14 On 17 August 1998 the respondent applied for compensation for injurious affection arising out of the refusal of the development application, that application being made pursuant to the provisions of s 11 and s 12 of the Town Planning and Development Act 1928 ("the TPD Act") and Part V of the Metropolitan Region Town Planning Scheme Act 1959. On 6 November 1998 this claim was rejected by the appellant on the basis that the application to develop the land was not a bona fide application in accordance with s 36(4)(b) of the Metropolitan Region Town Planning Scheme Act.

15 On 22 September 1999 the respondent made application to subdivide the land into two lots, the purpose and proposed use of the lots within the subdivision being stated as "MRS Parks and Recreation Reserve". A letter from the respondent dated 23 August 1999 which was attached to the subdivision application suggested that the appellant had an obligation to purchase the land reserved for parks and recreation. The subdivision proposed that the 132.157 ha lot would thenceforth be divided into two lots, one of 125.117 ha and the other 7.04 ha. Annexed to these reasons and marked "A" is the Plan of Subdivision prepared on behalf of the respondent.

16 Documentation accompanying the application suggested that the proposed subdivision would enable the land use and development of the lot to continue while negotiations and acquisitions were progressed separately for the reserved land. It was also put that approval to excise the regional reservation would allow for "the smooth development of the surrounding rural living estate while negotiations continue with the (appellant) in relation to its acquisition".

17 On 15 November 1999 the appellant approved the application to subdivide the land into the two proposed lots subject to various terms and conditions, of which condition 1 is the matter of primary concern.

18 On 14 January 2000 Amendment 32 to Town Planning Scheme No 2 rezoned the rural portion of the subject land to rural living A (excluding the area reserved for parks and recreation). The Amendment included a subdivision guide plan. Subsequently, on 23 March 2000 the respondent made application to subdivide the land into 226 rural living lots ranging in size from 4000m2 to over 1.0 ha in area. The proposed layout of the subdivision was said to be very similar to the pattern of subdivision in the already endorsed subdivision guide plan under Scheme Amendment No 32, particularly in terms of road design, general lot size distribution and open space.

19 On 10 May 2000 the respondent appealed to the Town Planning Appeal Tribunal against the imposition of condition 1 on the subdivisional approval. The grounds of appeal were:

"(a) The development does not give rise to the need for the reserve.

(b) The condition does not fairly and reasonably relate to the subdivision.

(c) The condition is unreasonable in the circumstances, such that no reasonable planning authority could have imposed it.

(d) The condition is imposed for an ulterior purpose.

(e) The condition is improper and constitutes a denial of the appellants right to compensation for acquisition or for injurious affection.

(f) There is no justification in law or planning principle for the requirement that the MRS Reserve be ceded free of cost, and in the circumstances the condition is unreasonable and inappropriate."

20 The Tribunal pointed out in its reasons that the plan of subdivision identified the "unusual nature" of what was proposed in the subdivision. That is, the new area proposed (7.04 ha) was itself the land sought to be ceded by the Crown free of cost or compensation. It said:

"In other words in one sense anyway, the subdivisional approval would be rendered nugatory since the separate lot created would immediately be ceded to the Crown."

Although unnecessary to its decision, the Tribunal made reference to the question whether the application made on 6 February 1998 to construct a single dwelling and general purpose shed on the land in question was an application made in good faith. The resolution of that issue had been determined by the Full Court in Bond Corporation Pty Ltd v Western Australian Planning Corporation [2000] WASCA 257 in which the Court concluded that where an applicant does not genuinely wish to carry out a development, but applies for permission to so develop land, that application will not be bona fide within the meaning of the relevant provision.

21 The Tribunal then went on to consider the various grounds of appeal. It rejected the contention that the relevant condition was imposed for an ulterior or improper purpose but said that it did not accept that the imposition of such a condition "without more is universally appropriate". Reference was made to relevant planning considerations, and in particular to the appellant's policy DC 2.3 wherein cl 3.2 deals with "foreshore reserves". This was the only policy to which reference was made and criticism of that fact is made by the appellant. The Tribunal then considered the question of a management plan for the Wungong Brook, expressing concern that there had been no discussions with the Shire or with the Waters and Rivers Commission in relation to these issues. The Tribunal considered the absence of any management plan or discussions with relevant responsible authorities to be relevant to the question whether the rationale offered by the appellant for the imposition of condition 1 was supportable. The essential reasoning of the Tribunal then followed:

"(32) ... In the tribunal's view the reality would appear to be that the subdivision creates two lots, the imposition of the Respondent's condition involves the ceding of the second lot created to the Crown without cost or compensation.

(33) It was urged upon us that it was incumbent upon the tribunal to have regard to the larger proposal for development in assessing whether ceding of the land is reasonably related to the development. At present however we do not think it necessary for the determination of this appeal to have regard to an application for development which is neither formally before us nor, so far as the papers in the appeal are concerned, formally yet determined by the respondent.

...

(36) The fact that the Appellant may have been prepared to have ceded the reserve land to the Crown fee of cost in exchange for the grant of further lots in the upcoming subdivision is:

1. Neither relevant in our view to the determination of this case;

2. Nor a correct application of the principles of Lloyd v Robinson.

(37) We express no view as to the merits of the bargain and express no view as to whether in relation to the proposed larger subdivision the commercial position sought to be negotiated by the Appellant is one which has ultimate planning merit. That is a matter which remains to be determined.

(38) In our view for the present and on the evidence before us we are not convinced that the reserve would be better maintained in public rather than private ownership. In fact the opposite may well prove to be the case. In that regard the principles articulated by this tribunal in Love v WAPC [1999] WATPAT 4 are apposite and applicable."

22 The Tribunal thus concluded that the respondent's appeal should succeed on the basis that the imposition of condition 1 was not supported by relevant planning considerations on the evidence before it.

23 Grounds 1 and 2 contend that the Tribunal erred in law in its approach to the question of future subdivision of the subject land. It is put that because the Tribunal did not have regard to the larger proposal for the development of the subject land it can be inferred that it did not consider whether condition 1 reasonably related to that proposal, contemplated as it was by the subdivision guide plan. This failure to have regard to what was described as a "central component of the Town Planning Scheme" was said to constitute a failure to have regard to a mandatory relevant consideration, namely the Town Planning Scheme.

24 It was further submitted that the Tribunal had erred in law and in fact in failing to have any regard to the future subdivision of the subject land contemplated by the subdivision guide plan. This argument relied upon the fact that the subdivision guide plan is incorporated into Town Planning Scheme No 2 and given force and effect by that Scheme. The subdivision guide plan provides for the future subdivision of the respondent's land and requires that the subdivision be in accordance with the Plan. Pursuant to reg 8(e) and reg 8(d) of the State Planning Commission Regulations 1962, the appellant is required in considering a plan of subdivision submitted to it for approval, to have regard to the amount of public open space to be provided, the land to be subdivided and the provisions of any operative or proposed Town Planning Scheme of the relevant local authority. The appellant thus argued that the Tribunal should have had regard to the future subdivision of the subject land contemplated by the subdivision guide plan and the amount of public open space to be provided in the land to be subdivided.

25 Further, because the express purpose of the subdivision of the respondent's land into two lots was to excise the MRS Reserve and to thus facilitate the development of a surrounding rural living estate in accordance with the subdivision guide plan, it was contended that it was essential that the Tribunal have regard to the larger proposal for development as reflected in the subdivision guide plan in assessing whether the ceding of the land was reasonably related to the development and should be required as a condition of the subdivision. The argument added the contention that the benefit to be provided to the proposed development by the land to be ceded under condition 1 formed an integral part of the proposed development, so that the required nexus clearly existed. This nexus, it was said, was accepted by the respondent and relied upon by the respondent in promoting Amendment 32 to the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2.

26 The respondent's answer to the contention that the Tribunal failed adequately or at all to have regard to the future subdivision of the land contemplated by the subdivision guide plan is that whether or not the Tribunal took the subdivision guide plan into account is of no consequence, as the subdivision guide plan clearly provided for areas of public open space, with the result that there was no requirement for further land to be ceded. The respondent contended that the subdivision guide plan could not be said to have provided for the reserve land as constituting public open space, because the proposal within it of a contemplated 220 odd lots contained ample public open space in compliance with the various policies, and did not require the reserved land to be ceded.

27 Counsel for the respondent argued that the Tribunal was not in any event required to have regard to what was only a "possibility" in relation to future subdivision of the subject land. Because no application had been made for subdivision of the land into anything other than two lots, it was contended that the Tribunal was quite correct in looking to see what reasonable requirements there were for public open space in circumstances where the subdivision was a simple subdivision into two lots. It was argued that in the circumstances the Tribunal could rightly have concluded that there was no requirement for public open space at all. In other words, in circumstances where there was simply a subdivision containing one substantial broad acres lot and one lot comprising reserved land, such subdivision being plainly for the purpose of triggering an entitlement to compensation, there could be no need in terms of Town Planning principles to deal with the question of public open space.

28 Further, it was argued, there could be no justification for ceding free of cost one of the two lots. The answer to the appellant's submission was thus said to be that there was no requirement of orderly town planning for the respondent to give up the smaller of the two lots when all that was being done was subdividing the land into two lots. Nothing in the subdivision guide plan or any other statements of policy required or even supported (it was argued) the requirement that one of the two lots be ceded in the way in which the appellant required.

29 I am persuaded that the argument of the respondent is correct. If one does refer to the subdivision guide plan, it is apparent that there is sufficient public open space provided for in that proposed subdivision. This public open space is provided quite apart from the land reservation associated with the Wungong Brook. There is a multiple use corridor proposed just south of the drainage area and a substantial area labelled "POS and Drainage" to the north of the Wungong Brook itself. The areas reserved for public open space are substantial and in my view support the argument of counsel for the respondent that even had the Tribunal given consideration to the subdivision guide plan it could rightly have been satisfied that public open space was properly provided for without the necessity for ceding the land which is the subject of the presently approved subdivision.

30 Whether the Tribunal was required to have regard to the subdivision guide plan it is therefore really unnecessary to answer. It is true that reg 8 of the State Planning Commission regulations required the appellant to have regard to any subdivision guide plan when considering a plan of subdivision submitted to it for approval. I am, however, inclined to accept the submission of counsel for the respondent that the amount of public open space provided by the subdivision guide plan clearly exceeds that which was reasonably required by reference to various policies of the appellant, and was in any event largely irrelevant to the question of the application for subdivision which was before the appellant in this instance.

31 That is to say, the respondent was not seeking to subdivide the subject land in accordance with or in any way related to the subdivision guide plan. The purpose of the instant application was clearly to trigger an entitlement to compensation in relation to the reserved land. It was an application for subdivision with an air of unreality, as the plan of subdivision which I have reproduced in these reasons clearly reveals. For these reasons I do not consider the appellant has made out the first two grounds of appeal.

32 The third ground of appeal contends that the tribunal erred in law in failing to have due regard to statements of planning policy. Those policies are policy DC 3.4, policy DC 2.5 and policy DC 2.3. They are incorporated into the State Planning Framework Policy which is prepared pursuant to s 5AA of the TPD Act.

33 Section 53 of the TPD Act does require that the Tribunal have regard to statements of planning policy. Section 53(1) is in these terms:

"In determining any appeal the Appeal Tribunal shall have due regard to any approved statement of planning policy prepared pursuant to the provisions of section 5AA and to any management programme for the time being in force under Part 3 of the Swan River Trust Act 1988, which may affect the subject matter of the appeal."

34 The appellant's argument is that the Tribunal was required to have due regard to the three policies as a matter of law, although without necessarily "inflexibly applying" those policies. What was argued was that the Tribunal could not ignore the policies or reject them in their general application because to do so would be to fail to have due regard to them. Although the Tribunal was free to depart from the policies in a particular case, in doing so it would have to illustrate that the merits of the case required such a departure. Reasons for so doing would be necessary. This failure on the part of the Tribunal was contended by the appellant to have constituted a clear error of law, reliance being placed upon the judgment of Ipp J in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 534:

"The distinction between an error of law and an error of fact is a vexed question. Definitions of a question of law and a question of fact have been attempted in many cases. The conflicting views are well illustrated in Tabag v Minister for Immigration and Ethnic Affairs [1982] FCA 276; (1982) 70 FLR 61.

In several cases it has been held that where a tribunal attaches too much or too little importance to a 'policy' or other relevant consideration, an error of law is not thereby committed: see eg Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In these cases, however, it was not suggested that the attachment of the wrong 'weight' to a particular factor contravened the decision maker's statutory duty. Where this occurs then an error of law undoubtedly is committed. As Jenkinson J said in Tabag v Minister for Immigration and Ethnic Affairs (supra) (at 82):

'Error of law will be held to have infected the decision ... if the misattribution of weight to a relevant consideration has violated what may be regarded as a rule or principle of law governing the attribution of relative weight.'

Another way of putting the matter is to say that a statutory body, charged with a duty to make discretionary decisions, must make those decisions in accordance with the criteria laid down in the statute concerned; if it does not, it commits an error of law: see also Rendell v Release on Licence Board (supra) (at 503-504).

It is the respondent's duty, by ss 20(1)(a) and 24(3) of the Act, to approve or refuse approval of an application for subdivision, or approve with or without conditions. In terms of s 52, on the hearing of an appeal from the respondent, the Tribunal is required to act according to 'the substantial merits of each particular case.', and, is further under a duty to exercise the discretion vested in it in accordance with sound town planning considerations: cf Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 at 153-155; Shire of Swan Hill v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757-758. To summarise, it is the Tribunal's statutory duty to apply sound town planning principles to the substantial merits of each particular case."

35 Reliance was also placed on the judgment of Murray J in Marford Nominees Pty Ltd v State Planning Commission, unreported; SCt of WA; Library No 960047; 1 February 1996 where (at 4 - 5) his Honour said:

"The short point for present purposes is that to the extent that any policy matter of that character arises in the context of the hearing of an appeal to the Tribunal by, s53(1) it is to 'have due regard' to any such matter. It may not of course allow any such matter to dictate the outcome of the appeal because to do so would be to decline to exercise its jurisdiction to determine the appeal in favour of the production of a decision actually made by another authority: Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522. The distinction is clear enough. It is between paying due regard to the view, opinion or policy expressed by another relevant authority so far as it may bear upon the subject matter of the appeal, as opposed to allowing the result of the appeal to be dictated by the policy so adopted. In the former case the Tribunal exercises its jurisdiction according to law. In the latter it errs in law by abrogating entirely the exercise of its jurisdiction and responsibility.

Following Falc it may be said that the Tribunal's task in determining the appeal was to make a discretionary judgment arrived at by a proper and genuine consideration of the substantial merits of the particular case before it. It was of course to apply proper town planning considerations to arrive at a proper appreciation of the substantial merits of the case. Such considerations are well recognised and they are of the kind which emerge from the Act s5AA(3) and otherwise from the general law as recorded in the decided authorities. The Tribunal will err in law if it fails to exercise that jurisdiction by allowing the result to be dictated by another or by otherwise showing that I has misunderstood the nature of its function by having regard to irrelevant considerations or by its failure to pay proper attention to relevant matters. It is clear of course that the application of proper planning principles to the consideration of an appeal will in an appropriate case involve giving attention not only to the private interest of the land owner in the development of the land but also wider considerations of the public interest in orderly development and the preservation of amenity generally: O'Sullivan v Farrer [1989] HCA 61; (1984) 168 CLR 210."

36 What is contended by counsel for the appellant is that the Tribunal failed to provide any reasons why the relevant policies were inapplicable to the present subdivision application. Those policies contemplate that there be a requirement to identify and set aside land for public open space, without compensation, and irrespective of whether the land is reserved under the MRS for parks and recreation. Although the Tribunal did make reference to policy DC 2.3 (pointing out that it should not be applied inflexibly) this did not (counsel argued) bear any relevance to the subdivision application in question and did not substantiate the Tribunal's decision not to apply relevant policies to the present case. What was argued was that the Tribunal appeared to have chosen to ignore general policy considerations because of the potential operation of the policies in circumstances which bear no relation to the present case. The Tribunal's reference to policy DC 2.3 was in the following terms:

"Some emphasis was placed upon the respondent's policy DC 2.3 and in particular Section 3.2 'foreshore reserves'. This is a policy which is directed to claiming 30 metres of private land abutting a lake or watercourse without compensation. This at first blush is capable of being understood as being in addition to the 10% of public open space which is a normal requirement of urban subdivisions above a certain size. There are necessarily some anomalies in a rigid application of such a policy. The shape and size of any subdivision will affect the extent of different amounts of land required to be given up, thus for example an elongated lot with a long boundary along a creek would require an owner to cede as much as half of his land to the Crown whereas an adjoining owner with no abutment to the creek would surrender no land."

37 Policy DC 3.4 is a rural land use planning policy. It provides in relation to planning for intensive rural development (cl 4.3) a number of strategies to be taken into account in relation to rezoning of subdivision proposals. Clause 4.3.3(xvi) - (xvii) is as follows:

"xvi) the need for, and location of, major public open space should be determined in the regional and local rural strategies.

xvii) areas for public open space should be identified where:

• the land constitutes an important landscape feature or conservation area,

• the land is an integral part of the development's purpose,

• the proposed development will be primarily residential or the land is required to achieve a linear open space system,

38 Policy DC 2.5 relates to special residential zones. Its objectives are to provide for the creation of lots between 2000m2 and 1 ha in suitable locations and cl 3.2.3(b) is as follows:

"b) Because of their spacious character and large lot sizes, the Commission does not specify a standard open space contribution for Special Residential zones. Land for public open space will be required, however, when the provision of recreational open space is considered desirable or when it can include an important topographical feature such as a creek, lake or group of trees which is to be retained as a recreational amenity for residents of the subdivision and the district as a whole."

39 Policy DC 2.3 relates to public open space in residential areas and cl 3.1.1 and cl 3.1.2 deal with general requirements as follows:

"3.1.1 The Commission's normal requirement in residential areas is that, where practicable, 10 percent of the gross subdivisible area be given up free of cost by the subdivider and vested in the Crown under the provisions of Section 20A of the Town Planning and Development Act, 1928 (as amended) as a Reserve for Recreation. In determining the gross subdivisible area the Commission deducts any land which is surveyed for schools, major regional roads, public utility sites, municipal use sites, or, at its discretion, any other non-residential use site.

3.1.2 The 10 per cent requirement is derived from the recommendations contained in the Stephenson-Hepburn Plan. That report states that for most areas a standard of 3.36 hectares per 1,000 population (excluding school playing fields) is recommended as sufficient for public open space."

40 Clause 3.2 relates specifically to foreshore reserves providing in cl 3.2.1 and cl 3.2.2:

"3.2.1 The Commission may require provision of a foreshore reserve where a subdivision includes land abutting a watercourse (eg river or creek) or body of water (eg lake or the sea). Such reserves will be required to be shown on the survey documents either as a Reserve for Recreation or a Reserve for Foreshore Management, dependent upon the use to be made of the land, and vested in the Crown under the provisions of Section 20A of the Town Planning and Development Act. The land in the reserve is to be ceded to the Crown free of cost and without payment of compensation by the Crown.

3.2.2 The required width of a foreshore or coastal reserve varies according to the size of the watercourse or body of water and the condition of its banks, shore or coastline. As a general rule in the case of river or lake foreshores, a reserve of 30 metres' width is required, but each application is examined in detail. Where, for topographical or other reasons, such as protection of a floodway, a greater or lesser width is considered necessary or desirable in the public interest, such a width may be specified. In the case of a coastal reservation, the Commission will apply the principles contained in its coastal planning policy (DC 6.1) with a guideline width of 100 metres."

41 Whilst it is clear that the Tribunal did not make specific reference to these policies other than policy DC 2.3 (which it said should not be applied inflexibly), counsel for the respondent argued that whichever way one looked at it, the public open space contained within the subdivision guide plan was more than adequate to meet the policies contained within the three policy documents in any event. This was because the subdivision guide plan provided for public open space in excess of 3.6 ha for a potential of 1000 residents. Further, that requirement related to residential areas, not rural residential subdivisions.

42 In my view the respondent has correctly pointed out that reference to the three policy documents and cross-reference to the subdivision plan would have indicated that the public open space requirements of the policies were met. Whether provision of a foreshore reserve would be required in relation to the Wungong Brook would be a matter for consideration, depending on the criteria set out in cl 3.2.2 of policy DC 2.3. However, on the face of it, the subdivision plan appears to cover that policy.

43 Counsel for the respondent argued that in any event the Tribunal had given consideration to policy DC 2.3 and the question of foreshore reserves. Literally, it did do so. Whether it was correct in looking at "rigid application" of such a policy is, however, questionable. However, it does seem to me that the requirements contained within the three policies are met in the subdivision guide plan. They do not appear to be relevant to the plan for subdivision which was before the appellant.

44 There is much to be said for the submission of counsel for the respondent that application of the policies to the possible subdivision of the land in accordance with the subdivision guide plan would appear to have the result that it would be unnecessary to cede the land adjacent to the Wungong Brook, but that is something that can wait another day. Insofar as the present plan for subdivision is concerned, it seems to me that the three policies are inapplicable. Nothing in the policies would seem to require that for the subdivision in question the smaller of the two lots should be ceded to the Crown.

45 The fourth ground of appeal contends that the Tribunal was unduly influenced by the absence of a current management plan for the land proposed to be ceded. It was argued that in focusing on issues of management of the reserve the Tribunal asked itself the wrong question and failed to address the question demanded by the TPD Act. The issue for consideration was said to be whether it was appropriate for the respondent to be required to cede public open space free of cost in return for the right to subdivide the subject land, regard being had to requirements for open space arising from the development contemplated by the subdivision guide plan. Counsel for the appellant argued that the Tribunal should not have focused on the question whether the reserve would be better maintained in public rather than private ownership and questioned the correctness of the decision of the Tribunal in Love v Western Australian Planning Commission [1999] WATPAT 4. This decision, it was said, contained the same error of principle as the Tribunal had made in this case. That is, the Tribunal substituted the question of management requirements of a reserve for that of the public open space requirements of the community of which the proposed development would form part.

46 The respondent's answer to this contention is that the present subdivision application does not give rise to planning or environmental concerns that need to be addressed in addition to the subdivision guide plan. The land is said to be already protected by the creation of the MRS reservation and until such time as the land is acquired by the appellant, the respondent is the person in the best place to continue to manage the reservation.

47 In my view it is unnecessary to resolve the question the decision in Love v Western Australian Planning Commission is correct. The reasons of the Tribunal in relation to this issue are not, in my view, critical to the decision it reached. The issue before the Tribunal was whether the condition imposed in relation to the subdivision application before the appellant was supported by relevant planning considerations. What the Tribunal was saying was that protection and management of the reserve was adequately provided for elsewhere. In this respect it adopted what the Tribunal had said in Love v Western Australian Planning Commission at [102]:

"In the opinion of the Tribunal, the protection and management of the reserve is more than adequately provided for by the provisions of the Scheme for Special Rural Zone 26. The Scheme provides a direct mechanism for control of the use of land on the reserve (as does Part II of the MRS) and for rehabilitation of the area reserved. Although the ultimate determination on land reserved under the MRS is for the Commission, the Scheme includes this land as open space in the Special Rural Zone and the provisions of the Scheme apply to control land use and other activities."

I am unpersuaded that the Tribunal failed to apply appropriate planning considerations to this issue.

48 The final ground of appeal contends that the Tribunal failed to give sufficient reasons for its decision that the imposition of condition 1 was not supported by planning principles. It was argued that the Tribunal failed to indicate why it concluded that condition 1 was not supported by planning principles. Whilst reference was made to policies and to the absence of a management plan, the appellant complains that it is not apparent how these factors were applied in reaching the ultimate conclusion. It is submitted that it is unclear whether the Tribunal was saying that condition 1 was invalid, or whether it was saying that it was valid, but ought not to be imposed in the exercise of the Tribunal's discretion.

49 It is of course true that the Tribunal has a duty to give proper reasons and reasons which will enable the court to properly understand the basis for its decision in exercising its appellate function: Stojkovski v Fitzgerald [1989] WAR 328; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. However, in my view the Tribunal gave sufficient reasons. It reached the view that given the appellant's approval of the subdivision, it was entirely unreasonable to impose condition 1. That is, in the application of proper planning principles, a subdivision creating two lots such as this did, could not justify the imposition of a condition that one of those lots be ceded to the Crown without cost or compensation. The essential reasoning of the Tribunal is clear. It is that proper planning principles could not justify that result. That was a conclusion which, in my view, was clearly open to the Tribunal and indeed it is one with which I agree. As counsel for the respondent put it, there is an air of unreality about the approval of the plan of subdivision with a condition which required the ceding of one of the two subdivided lots to the Crown without compensation. Such a result would effectively render the subdivision nugatory.

50 For these reasons I am of the view that the appeal should be dismissed.

Region Town Planning Scheme Act 1959

Planning Commission Regulations 1962

Planning and Development Act 1928

River Trust Act 1988

Western Australian Planning Commission v Erujin Pty Ltd [2001] WASCA 139

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (94 paragraphs)

Western Australian Planning Commission v Erujin Pty Ltd [2001] WASCA 139 (30 April 2001)

Parties

Legislation Cited (4)

Cases Cited (11)