Conditions of subdivision approval requiring reserved land to be ceded free of cost – can they be challenged?

When land is subject to a reservation under a planning scheme, such as a “parks and recreation” reserve under the Metropolitan Region Scheme (MRS), it is common for any subdivision approval to be granted by the Western Australian Planning Commission (WAPC) subject to a condition requiring the reserved portion of land to be ceded to the Crown free of cost.

It is however important for landowners, developers and town planners to understand that there is no absolute right for the WAPC to require reserved land to be ceded free of cost in all cases.  In particular, any such condition of subdivision approval requiring reserved land to be ceded to the Crown free of cost must still satisfy the legal criteria for a valid condition.  If it can be argued that such a condition is legally invalid for whatever reason, then there may be grounds for a challenge and the ultimate deletion of the condition in question.

In order for a condition of subdivision approval to be legally valid:

  • the condition must have a proper planning purpose;
  • there must be a sufficient nexus between that proper planning purpose and the proposal in question; and
  • the condition must not be unreasonable.

In a very recent case before the State Administrative Tribunal (SAT) (reference DR 164 of 2018), the Statutory Planning Commission of the WAPC was persuaded on reconsideration to delete a condition of subdivision approval that required a portion of land zoned “parks and recreation” under the MRS to be ceded to the Crown free of cost.

In that case, privately-owned residential land in Dalkeith was proposed to be subdivided into two separate lots.  The land directly abutted the Swan River and a narrow portion of the land at the river foreshore was reserved for “parks and recreation” under the MRS.  A condition of subdivision approval was imposed by the WAPC at first instance to require this reserved portion to be ceded free of cost.

The landowner commenced proceedings in the SAT made submissions to the WAPC to the effect that the condition of subdivision approval was legally invalid, for reasons including:

  • the condition did not have a proper planning purpose, because the limited area of the reserved land and its lack of accessibility by the public meant that it could not achieve the intended function of “parks and recreation”; and
  • even if there was a proper planning purpose, there would be no sufficient nexus with the subdivision proposal in question, because the creation of one additional lot would not itself generate the need for “parks and recreation” land in the locality and the configuration of the proposed subdivision would still only see a single lot with direct frontage to the Swan River.

The deletion of the condition of subdivision approval by the WAPC on reconsideration means that the landowner may now implement the proposed subdivision whilst retaining legal ownership of the reserved portion that directly abuts the Swan River.

The lesson to take from this matter is that all conditions of subdivision approval should be scrutinised closely and challenged where appropriate.

In many cases, conditions of subdivision approval requiring reserved land to be ceded free of cost will be reasonable and legally valid.  For example, if a large vacant lot in a coastal area is to be subdivided for residential purposes, and an area of that land abutting the coast is reserved for “parks and recreation” under the MRS, then it may be reasonable to accept that the future residents of the subdivision would directly benefit from this reserved portion being ceded to the Crown and held in public ownership for public purposes.

In many cases though, there may not be any proper justification for such a condition of subdivision approval, by reference to the criteria in the legal test.

If there is doubt as to whether a condition of subdivision approval requiring reserved land to be ceded free of cost is legally valid, then legal advice should be sought on the issue.  In an appropriate case, the WAPC can then be asked to reconsider a condition of subdivision approval pursuant to section 151 of the Planning and Development Act 2005 (WA) (PD Act).  A condition of subdivision approval may also be challenged in the SAT pursuant to section 251 of the PD Act.

Lavan is proud to have represented the landowner in this SAT proceeding and to have assisted in procuring the deletion of the condition of subdivision approval in question.  If you have any questions in relation to conditions of subdivision approval and requirements to cede reserved land, please contact the Lavan planning and environment team.

If you have any queries in this regard, please contact the Lavan Land Compensation team.