Clearing conditions of subdivision approval in stages

The Planning and Development Act 2005 (WA) (Act) Section 145(4)(b)(ii) states that a diagram or survey can be approved:

(4)…if the Commission is satisfied that —

(a) the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and

(b) if that approval was given subject to conditions —

(i) the conditions have been complied with or will be complied with at the time a certificate of title is created or registered; or

(ii) in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,

the Commission is to endorse its approval on the diagram or plan of survey.

Whilst it is the case that the Act clearly refers to staged development, issues can arise in identifying which conditions apply to and are relevant for a particular stage and can result in considerable disagreement with the clearing authorities and/or the Western Australian Planning Commission (WAPC).

The interpretation of this provision was helpfully dealt with in the recent State Administrative Tribunal (SAT) decision of Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76 (Darling Downs).

The facts of this matter involved a conditional subdivision development approval where only some of the development conditions had been met.  The developers had sought to have a deposited plan for an early stage of the development (Stage 2) approved without having to comply with conditions requiring the contribution toward road works and ceding of land not forming part of the stage.  The WAPC defaulted on approving this plan and the developers instigated proceedings in SAT (on the basis of a deemed refusal) to have this issue resolved.  The WAPC had previously cleared conditions for Stage 1 of the approval. 

In the Darling Downs matter the Applicant argued that a number of conditions relating to the provision of road infrastructure were not related to what was required for Stage 2 of the development and that the existing roads in the area were adequate; therefore not requiring further ceding of land or road works.  The Applicant argued that the threshold for such works would only be reached in the development’s later stages.

The Respondent argued that given the regional planning aspirations for the area, the ceding of extra land and the other conditions needed to be complied with to ensure the future ‘vision’ of the locality occurred.  If the plan put forth by the Applicant was endorsed it would allow over 50% of lots in the subdivision estate to be created without satisfying the need for perimeter roads.  This was argued to be a ‘tipping point’ in requiring all conditions to be met.

SAT found in favour of the Applicant, namely that there was a lack of evidence linking compliance with the further conditions with Stage 2 of the development.

In circumstances that there is some dispute as to which conditions are required to be cleared for a stage, the SAT reasoning determined that the relevant test is an adaption of the well known ‘Newbury’ test in planning.  It is an adaptation of the test in as much as it does not relate to the validity of the conditions but informs how s 145 is exercised in determining what conditions need to be satisfied at a certain stage.1

This adapted test for staged approval requires a need for:

  1. The condition being imposed with a planning purpose;
  2. The condition to have a nexus to the applicable stage of the development; and
  3. The requirement for compliance to be reasonable.

In making its decision SAT said:

[50] The Tribunal can comprehend the respondent's concern that developers not be allowed to subdivide, for instance, 90% of an estate without such arrangements being agreed, because there are obviously a number of risks which may arise.  The Tribunal accepts that at some stage in the development comprising several stages it will be reasonable to require that the arrangements are settled, but that is not the case here.

[51] Simply put, the Tribunal considers that the 'tipping point' has not been reached. It is the Tribunal's view that Stage 1 and Stage 2 do not of themselves present a need for these conditions so that the Deposited Plan should not be endorsed.  It is not the Tribunal's role in the matter before it today to determine when this 'tipping point' will be reached.  The respondent was unable to satisfy the Tribunal with the evidence that it presented, that there are any planning considerations which warrant refusal to endorse the Deposited Plan.

[52] The respondent made submissions regarding the ramifications of a decision by the Tribunal to allow so-called piecemeal compliance with conditions with subdivision approval.  However, the respondent failed to provide the Tribunal with evidence which satisfies the Tribunal that there are planning considerations which require these conditions to be complied with at this stage or point in time.

Accordingly, in light of this decision, it is worth developers spending more time looking at the conditions imposed upon a subdivision approval and querying if compliance with each of the conditions is required in seeking clearance at each stage of the subdivision.

A more rigorous approach to the assessment may well assist in the managing funding arrangements and overall project management of developments in future.

1 Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76 [23].

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.