Challenges to Public Open Space Conditions in Subdivision applications – recent decisions

The planning framework for the residential subdivision of land in Western Australia has a long-established policy requirement (dating from 1956) for the imposition of a condition requiring the giving up of 10% of the subdivisible area for public open space (POS Condition). The planning reasons that underlay this policy was that an increasing number of residents in such developments would create a need for recreational areas, to be equitably provided by all subdividers.

It has more recently been the case that the imposition of the POS condition has been used as pretext for the WAPC and local authorities to secure agreements by the subdividers to make cash-in-lieu payments instead of providing actual POS areas for recreation. It is also becoming commonplace for POS conditions to be imposed in respect of infill and strata -title subdivisions of existing urban areas, where the earlier planning for such areas have already allocated established POS areas. In such cases it becomes arguable whether a need or ‘nexus’ for more POS areas arises, and whether the standard POS condition is justified.

The issue of the POS condition and its place in the current planning framework was reviewed and discussed in detail in the recent SAT decision of Bestry v WAPC1 delivered 3 April 2019. The SAT decision in Bestry also considered the POS condition requirement in the context of the criteria for legal validity of such a condition and in particular considering the issue of need or ‘nexus’ as one of those criteria to be satisfied.

In Bestry the proponents challenged the POS conditions imposed on a number of grounds, including grounds that there was already sufficient existing POS areas in the locality. The proponents called a planner who assessed the POS in the locality, to include a substantial regional open space area and five other local open space areas in the vicinity of the subject land.

The land required to be given up in Bestry was already reserved under the City of Stirling local planning scheme, which was the subject of a claim for compensation by the owners against the City (and the subject of an election to purchase by the City). The proponents argued that the condition had been imposed for an ulterior purpose of seeking to defeat the compensation claim, which argument was rejected by the SAT.

The SAT held that the subdivision approval was an entirely separate process from the dealings concerning the claim, and that the POS condition was properly applied in relation to the subdivision application (for 23 residential lots). The SAT in Bestry also reviewed the State Planning Framework, in which the policy support for the POS condition is substantially laid out, including Statement of Planning Policy 3.6, Development Control Policies and Liveable Neighbourhoods.

The SAT disagreed with the owners’ planners assessment of available POS within the 400m and 800 m ‘walkable’ catchments around the subdivision, in particular the SAT rejected the inclusion of the nearby Carine Regional Open Space in the assessment of available POS in the locality. The SAT accepted the WAPC’s argument that the ROS area served different functions to that of POS and ought not be included in the POS assessment. The SAT agreed with the WAPC planners assessment (excluding the regional open space) and held that with the exclusion of the ROS area, the POS in these walkable catchments were somewhat less than 10%.

The SAT held that the POS condition had been validly imposed, in the sense that there was a sufficient need or ‘nexus’ between the POS condition and the requirement for 10% POS in the surrounding area.  The SAT noted that the parties had not argued  whether, (apart from the issue of legal validity), on a merits based argument the SAT should exercise its discretion to reject the condition (holding that it would leave such an argument to another occasion).

In a more recent SAT case of Bilecki v WAPC2, the SAT rejected the owners’  arguments against the imposition of the  POS condition, which was imposed in respect of a proposed subdivision for 31 residential lots in Burekup (near Bunbury).  In that case the SAT pointed out that the question of ‘need or ‘nexus’ in the context of proper planning was not  to be limited to the 400m and 800m walkable catchments, but to have regard to the strategic planning for POS that may be outside these catchments.  The SAT that such an approach would otherwise undermine the planning framework and in addition would be highly inequitable, (following Bestry) and determined that the ‘correct and preferable’ decision on the merits was to impose such condition.

Survey-strata and strata title subdivision

In the case of CNES Property Pty Ltd v City of Gosnells3 the SAT considered a challenge to a POS condition imposed on a 54 multiple dwelling strata subdivision, where the building concerned had already been constructed and a Form 26 (clearance of conditions of strata subdivision) had been issued by the City as delegate of the WAPC. The developer had previously paid a cash -in-lieu payment (in lieu of POS) to the City ‘under protest’ to satisfy the conditions imposed upon their original application for strata title approval.

The SAT ultimately held that the issuing of a Form 26 by the City (as distinct from the original application for strata title approval) was not a matter involving a discretionary decision on the City’s part, and a result there was no appealable matter arising before the SAT to determine. Notwithstanding that, the SAT made observations on whether the City (the WAPC’s delegate) had power to impose a POS condition on an application for strata title approval where the building had already been constructed and no provision made in the plans for an allocation of POS. The SAT left open the question of whether the standard POS condition can be imposed in such circumstances, however, generally observed that the WAPC had the same powers as were provided in relation to green title (freehold) subdivisions.

The SAT in earlier decisions (Claddagh Holdings Pty Ltd v City of Gosnells4 and Tierney v WAPC5) confirmed that in both strata title and green title subdivisions the WAPC’s power to impose a POS condition could be validly made where the subdivision plan did not (and could not practically) provide for an allocation of public open space, and was a pretext for a cash in lieu payment to be imposed on the developer.

Conclusion

The SAT decisions discussed above show that while the 10% POS condition has historically been a standard requirement in the planning framework, the suitability of such a condition in all cases may be questioned, particularly where infill and strata title development is being undertaken in well established urban areas where POS has been planned for and provided in earlier subdivisions and development. The questions of whether such a condition has been properly imposed will give rise to legal and planning considerations and developers should seek advice in such cases.

If you have queries or concerns over your building projects and compliance issues call Brian McMurdo on 9288 6893.