In Western Australia, subdivision approval from the Western Australian Planning Commission (WAPC) is required whenever a landowner proposes to turn an existing lot into multiple smaller lots.
Subdivision approvals will ordinarily be granted by the WAPC subject to multiple conditions and must usually be implemented within four years of being granted.
So what happens if a few years after subdivision approval is granted, a landowner finds itself unable to satisfy a particular condition, perhaps due to an impasse or disagreement with the relevant government body that is responsible for the condition in question?
Section 251(2) of the Planning and Development Act 2005 (WA) (PD Act) provides that an application for review may be made in the State Administrative Tribunal (Tribunal) in relation to any unacceptable condition of subdivision approval. Such proceedings in the Tribunal must however be commenced within 28 days of the subdivision approval being granted (absent a short extension being allowed), which creates difficulties if an issue with satisfying a particular condition only arises further into the four year implementation period. Given the usual timeframes associated with subdividing land, it would be rare for a landowner to have made any meaningful progress on satisfying conditions of subdivision approval within 28 days of its grant.
The PD Act however identifies a further right of review in the Tribunal, which is at the stage where a deposited plan is lodged in connection with the subdivision proposal, ahead of new titles being created. In particular, section 251(4) of the PD Act gives a right of review in the Tribunal with respect to a decision of the WAPC to refuse to endorse a deposited plan that has been prepared in accordance with a subdivision approval. Section 251(5) of the PD Act then provides that the WAPC refuses to endorse a deposited plan due to a particular condition of subdivision approval not having been satisfied: “…an application under subsection (4) may include an application for review of that condition”.
The conventional wisdom would appear to be that section 251(5) of the PD Act gives a “back door” right of appeal in relation to unacceptable conditions of development approval. In particular, if a landowner finds itself unable to satisfy a particular condition, it could lodge a deposited plan with the WAPC anyway, receive a refusal to endorse the deposited plan from the WAPC, commence proceedings in the Tribunal and then use that proceeding to challenge the condition of subdivision approval in question.
The Tribunal has however thrown some doubt as to the viability of undertaking such a strategy, in the recent decision of Niroda Holdings Pty Ltd and Western Australian Planning Commission.1 In that case, a landowner sought a review in the Tribunal of a refusal by the WAPC to endorse a deposited plan, because a condition of subdivision approval requiring a risk management plan in relation to a nearby pipeline had not been satisfied. The landowner in that case had asked the Tribunal to delete the relevant condition of subdivision approval, relying on section 251(5) of the PD Act.
The Tribunal ultimately dismissed the application for review in this matter due to procedural defects with the deposited plan provided to the WAPC, but the Tribunal also stated in relation to section 251(5) of the PD Act:
…the Tribunal is of the view that the scope of a merits review (whatever that may lawfully allow) for a condition under s 251(4) and (5) of the PD Act is limited to whether the condition previously imposed, should, or needs to be complied with, at the time the Commission is requested to endorse its approval on a diagram or plan or survey.
Put another way, the Tribunal remarked that although section 251(5) of the PD Act allows an appeal as to whether a condition of subdivision approval actually needs to be satisfied before a deposited plan is endorsed for a particular stage of the subdivision, section 251(5) of the PD Act does not allow an applicant to argue that the particular condition of subdivision approval should be deleted altogether. The Tribunal remarked that any attempt to delete a condition of subdivision approval altogether must be made through an application for review commenced within 28 days of subdivision approval being granted, pursuant to section 251(2) of the PD Act.
The comments of the Tribunal in this regard are likely to be revisited and challenged in subsequent cases, because the restrictive reading adopted by the Tribunal would arguably be contrary to the plain language of section 251(5) of the PD Act itself, which says that such proceedings “may include an application for a review of that condition”. There would appear to be a sound argument for reading this provision broadly and allowing an appeal on a deposited plan to include an argument that a particular condition of subdivision approval should be deleted.
This decision of the Tribunal should not prevent a landowner from using section 251(5) of the PD Act to argue that a condition of subdivision approval does not need to be satisfied for a particular stage of a subdivision or alternatively that a condition has in fact been satisfied, despite a refusal by the relevant authority to clear the conditions.
The reality however is that if a landowner finds itself absolutely unable to satisfy a condition of subdivision approval, and that condition is unable to be deleted via section 251(5) of the PD Act, the only option available to the landowner would effectively be to abandon its subdivision. It is unclear whether the Tribunal has fully appreciated this point in publishing its reasons.
If you require any assistance in relation to complying with or challenging conditions of subdivision approval, please do not hesitate to contact Lavan's Planning and Environment team.
[1] Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57
