With a proposed 199 lots, the contribution of $4,522.61 per lot quickly added up to a staggering $900,000 condition of approval for this subdivision. Council argued the contribution was required for a 2.5-metre-wide two-way shared path for walking, cycling and scooters over the nearby Sorell Rivulet.
The developers appealed this condition at the Tasmanian Civil and Administrative Tribunal (TASCAT), with Mark providing expert evidence.
The Tribunal decision hinged on the Temwood interpretation of a valid permit condition involving three tests:
1. The condition is for a planning purpose and not for any ulterior purpose.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.
“The decision highlights the common ‘first mover’ problem where the first landowner to develop is often unfairly required to build infrastructure that others will derive more benefit from.
Councils in setting permit conditions should aim to fairly apportion infrastructure costs between all developers in growth areas.”
– Mark Petrusma
The TASCAT found that the subdivision did not generate the need for a new bridge, with four existing bridges within its vicinity. Mark advised the tribunal that with an existing bridge a mere 5-minute walk from the site, a new bridge would provide minimal benefit to the subdivision itself.
Aside from determining the necessity of the bridge, the tribunal questioned the accuracy of the cost estimate.
Civil design draftsman Bill Stanford estimated costs at around $250,000, a significant difference from the $900,000 requested by Council. Another transport planning expert had provided an estimate of $1,886,627. The tribunal found that this estimate did not accurately reflect the bridge proposal. The uncertainty of costs was a significant factor in the decision, given the minimal benefit afforded by the bridge.
The TASCAT ultimately ruled that this condition of approval for the subdivision was unreasonable and overturned the condition.
You can read more about the case and Mark’s expert opinion here, and for a full breakdown of the appeal, click here.
Mark Petrusma
Associate: Transport
Mark brings value to projects by providing deep insights into transport conditions currently experienced by road users and critically assessing changes in performance and behaviour responding to a range of potential scenarios.
His specific areas of interest include: expert evidence at TASCAT and VCAT, transport impact assessments, intersection modelling, car parking demand, carpark and access design, rezoning and subdivisions.
