| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BAC VILLAGE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 58 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : 26 MARCH 2013 AND 11 AND 12 APRIL 2013 DELIVERED : 9 MAY 2013 FILE NO/S : DR 42 of 2012 BETWEEN : BAC VILLAGE PTY LTD Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Planning and development - Subdivision - Coral Bay - Land identified for workers' accommodation - Orderly and proper planning - Process of planning review being undertaken - Proposal designed to create long term and sustainable economic and cultural benefits - Whether economic benefit supports approval - Whether proposal preempts orderly planning review
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Legislation: Aboriginal Councils and Associations Act 1978 (WA)
Land Administration Act 1997 (WA)
Planning and Development Act 2005 (WA), s 24
Shire of Carnarvon District Zoning Scheme No 11, cl 3.2, cl 3.5, cl 3.5.2.6
State Administrative Tribunal Act 2004 (WA), s 31
Strata Titles Act 1985 (WA), s 5C(2)
Town Planning and Development Act 1928 (WA), s 5AA Result: Respondent's decision affirmed
Summary of Tribunal's decision: After many years of negotiations in relation to the development of a Workers Accommodation Project on the applicant's land in Coral Bay, the applicant applied for approval to subdivide a portion of the land into residential lots. The application was refused by the Western Australian Planning Commission, and the applicant sought a review of that decision.
The Tribunal examined the existing planning instruments and policies relevant to Coral Bay and the Ningaloo Coast generally, and to the applicant's land in particular. It concluded that the proposed development was inconsistent with those planning instruments. The Tribunal also examined the history of dealings between the owners of the land and the Government of Western Australia and noted the objective of both parties in those dealings of providing a longterm and sustainable economic, social and cultural welfare for the Baiyungu people who were the traditional owners of the land, and the proponents of the proposed subdivision. It concluded that, even if it were accepted that that objective would be achieved by the proposed subdivision, that factor would not outweigh the process of orderly planning review necessary to depart from the present planning framework.
Accordingly, the decision of the respondent to refuse the application was affirmed.
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Category: B
Representation: Counsel:
Applicant : Mr M Hotchkin
Respondent : Mr C Bydder
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor for Western Australia
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicant, BAC Village Pty Ltd (BACV) was incorporated on 19 March 2010 and was established for the purpose of developing what is described as the Workers Accommodation Village Project at Coral Bay. Coral Bay is a tourism settlement situated on the Ningaloo Coast, approximately 1100 kilometres from Perth between Carnarvon and Exmouth. There are two shareholders of BACV. One is the Baiyungu Aboriginal Corporation (BAC), an Aboriginal Association incorporated on 27 October 1993 under the now repealed Aboriginal Councils and Associations Act 1976 (WA) for the purpose of carrying out cultural, social and economic objects for the benefit of its members who are the recognised descendents of the Baiyungu people and their families. The other is Sandlink Pty Ltd, the trustee of the Bridge Family Trust, a trust associated with Mr Noel Ernest Bridge who has been instrumental in putting forward this proposal. The Baiyungu people are the traditional owners of the land in Western Australia on which Coral Bay is situated. 2 On 30 August 2011, BACV applied for subdivision of certain land being a portion of Lot 308 in Coral Bay (subject land). On 25 January 2012, the respondent refused the subdivision application. BACV subsequently brought the present proceedings seeking a review of that decision. 3 The present proceedings are a step in what has been a long process of negotiation between the Government of Western Australia and representatives of the Baiyungu people designed both to achieve development of the tourism potential of Coral Bay and to provide positive economic and social outcomes for the long term benefit of the Baiyungu people. 4 The subject land has been identified in various planning instruments, and is regarded by the parties, as appropriate for development of what is referred to as the Workers Accommodation Project, which is a project designed to provide for accommodation for people who work in Coral Bay separate from accommodation provided for tourists. 5 To understand this case in its context, it is necessary to have regard to the relevant planning instruments affecting Coral Bay, the Ningaloo Coast upon which Coral Bay is located, and the subject land itself. (Page 5)
6 The parties identified, and were agreed as to, the relevant planning instruments and the extracts from those instruments of relevance to the present application. They were set out in the respondent's statement of issues, facts and contentions (SIFC) and accepted by the applicant in its SIFC, although the applicant referred to some additional provisions in its SIFC. The relevant provisions identified by the parties are as follows:
Statement of Planning Policy No 1 - State Planning Framework Policy (Variation No 2) (SPP 1) 7 SPP 1 was prepared under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) and continues in force pursuant to s 24 of the Planning and Development Act 2005 (WA) (PD Act). It establishes general principles for land use and planning and development, and identifies five key principles to guide the way in which future planning decisions are to be made. These principles underlie all State and regional plans, policies and strategies. The respondent relies upon one of the key principles which focuses on 'Infrastructure' and reads: Planning should ensure that physical and community infrastructure by both public and private agencies is coordinated and provided in a way that is efficient, equitable, accessible and timely. This means: i. planning for land use and development in a manner that allows for the logical and efficient provision and maintenance of infrastructure ... … iv. encouraging consultation with providers of infrastructure, to ensure they have regard to planning policies and strategic land use planning when making their investment decisions, in order to ensure that land use and development are closely integrated with the provision of infrastructure services. 8 The applicant relied upon references to the key principles of 'Economy' (section A3) and 'Regional Development' (section A5), and in particular the descriptions of those principles as follows: The State Planning Strategy identifies the five key principles which further define this primary aim and describe the considerations which influence good decision-making in land use planning and development. Planning should take account of and give effect to, these principles and related policies to ensure integrated decision-making throughout government. … Economy: (Page 6)
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The south-west of the State is subject to growth pressures which will need to be carefully managed. Consistent with the State Planning Strategy, the growth and development of other regional communities will be supported by assisting them to achieve their social, environmental and economic goals. Planning should assist communities of the outlying regions in achieving the opportunities comparable with towns of the southwest despite their isolation, size and climatic disadvantages. This will mean better coordination of land uses, high standards of development and the availability of land, physical and social services to make regional communities sustainable in the long term. In the vast areas between settlements, mineral and agricultural resources and new industrial facilities will need to be developed in harmony with conservation of the natural environment ensuring that all development projects are sustainably managed. The State Planning Strategy identifies the key regional strategies for each of the regions of the State. It provides a series of desirable actions to address the key regional strategies which are the focus of integrated planning to provide for the future prospects of each region. 9 Part B of SPP 1 incorporates various planning documents, including State Planning Policy 6.3 Ningaloo Coast and the Ningaloo Coast Regional Strategy Carnarvon to Exmouth (2004).
Statement of Planning Policy No 3 - Urban Growth and Settlement (SPP 3) 10 SPP 3 was prepared under s 5AA of the TPD Actand continues in force pursuant to s 24 of the PD Act. It sets out the principles and considerations which apply to planning for urban growth and settlement in Western Australia. 11 Clause 2 of SPP 3 states: 12 Clause 5.2 of SPP 3, entitled 'Managing urban growth and settlement across Western Australia', states that all development should be determined having regard to regional strategies prepared by the State. (Page 8)
13 Clause 5.5 of SPP 3 entitled 'Coordination of services and infrastructure' states that: Planning for new growth and settlements should be co-ordinated with the costefficient provision of infrastructure and services such as roads, public transport, water supply, sewerage, electricity, gas, [t]elecommunications, drainage, open space, schools, health and recreational facilities. …
Statement of Planning Policy No 6.3 Ningaloo Coast (SPP 6.3) 14 SPP 6.3 is also a statement of planning policy made under s 5AA of the TPD Actand continues in force pursuant to s 24 of the PD Act. Its purpose is to manage economic, social and environmental issues to ensure the sustainable future planning and urban development of the Ningaloo Coast. 15 The applicant relied upon the Guiding Principle found at cl 5.1.4 relating to 'Economic development' which provides: All planning and development should assist actively in the creation of regional wealth, support the development of new industries and encourage economic activity as long as these activities are in accordance with sustainable development principles. Planning and development must also support the provision and maintenance of infrastructure based on sustainability principles to service regional communities and develop and upgrade tourism infrastructure to improve the attractiveness of the region as a natural and remote place to visitors and residents alike. 16 SPP 6.3 contains four key objectives as follows: 1. Provide state agencies, local government, community and proponents with clear guidance regarding acceptable and sustainable development on the Ningaloo coast. 2. Maintain the Ningaloo coast as an allseasons recreation and naturebased tourism destination and limit growth with managed staged development, to ensure that the community continues to enjoy a remote and natural experience. 3. Preserve and protect the natural environment and enhance and rehabilitate degraded areas within the environment. 4. Consolidate future residential, commercial, higherimpact tourism and industrial development in the towns of Carnarvon and Exmouth and provide strategic directions for their future growth. 17 Clause 5.3 of SPP 6.3 states: (Page 9)
(1) In determining all applications for subdivision, strata subdivision, the granting or variation of leases, development, redevelopment, changes of use and other planning decisions the commission and local government will ensure that - (a) no application will be approved within Coral Bay or the significant environmental areas which is inconsistent with this policy and the following components of the Ningaloo coast regional strategy Carnarvon to Exmouth - • Regional land use plan, • Coastal tourism framework, • Planning and environmental guidelines for sustainable tourism on the Ningaloo coast, and • Coral Bay settlement plan (b) no applications for higher impact tourism, residential, commercial or industrial developments will be approved unless - Ningaloo Coast Regional Strategy Carnarvon to Exmouth and Coral Bay Settlement Plan (NCRS) 18 The NCRS is the Respondent's regional strategy governing an area from Carnarvon to Exmouth, including Coral Bay. It is dated August 2004 and provides a land use planning framework for up to 30 years. 19 Part 2.3 of the NCRS is the Coral Bay Settlement Plan, which addresses planning issues in Coral Bay. (Page 10)
20 The Coral Bay Settlement Plan identifies the need to make available workers' accommodation in Coral Bay, and provides a number of guiding principles to ensure that it is achieved. The planning objective for 'Workers' Accommodation' states:' to provide for the sustainable development and management of leasehold workers' accommodation for a population of up to 400 people, including workers, partners and dependants (under 18) that meets the various needs of the Coral Bay work force. 21 Further, under this objective the NCRS states: The workers' accommodation will not be freeholded as it will be managed in a leasehold manner. Due to environmental and infrastructure constraints, Coral Bay is not considered an appropriate location for freehold residential land release. One of the main policy recommendations of the [NCRS] is that all future residential growth shall be concentrated in Carnarvon and Exmouth, which are better placed to cater for residential growth in terms of existing development and infrastructure provision. To become eligible for access to the workers' accommodation, prospective occupants must provide satisfactory proof of substantial employment in tourism or servicing associated with Coral Bay. This accommodation is intended only for Coral Bay workers, including partners and dependants under 18. Where a person is no longer actively engaged in substantial employment in Coral Bay or retires, their eligibility for accommodation shall be forfeited. At no stage will freehold of workers' accommodation be considered. 22 The applicant notes that, at page 161 of the NCRS in relation to the Coral Bay Settlement Plan, the sections under the heading 'Freehold or leasehold residential land' reads: Planning objective To prevent the development of any residential land in Coral Bay (apart from workers' accommodation) and direct residential development to Carnarvon and Exmouth. Due to the environmental sensitivity of the locality, expense and limited potential for servicing infrastructure and the objective of the Ningaloo coast regional strategy Carnarvon to Exmouth to facilitate the ongoing development of Carnarvon and Exmouth, no residential land will be released in Coral Bay, apart from land for workers' accommodation. Actions and Guidelines (Page 11)
» That no provision be made for the creation of residential accommodation at Coral Bay apart from the development of workers' accommodation on the designated site (NSDO, LG).
Development control policy 1.1 - subdivision of land - general principles (DC 1.1) 23 Clause 3.6.1 of DC 1.1 provides: The WAPC will ensure that each new lot is provided with a standard of public utility services, or that provided by a licensed private service provider, appropriate for its intended use. …
Shire of Carnarvon District Zoning Scheme No 11 (DZS 11 or Scheme) 24 The subject land is located in the 'Coral Bay Settlement Zone' of the Scheme, and is identified as 'Worker Accommodation Precinct'. 25 Clause 3.5 of the Scheme relates to the Coral Bay Settlement Zone. Clause 3.5.2.6 relates to the Worker Accommodation Precinct and reads: Goal To provide a discrete residential village for residential occupancy by persons who need to reside in Coral Bay as a result of their business or employment. Specific Provisions (1) Land use and development within the workers' accommodation precinct shall be in accordance with an Outline Development Plan adopted by the Council and endorsed by the Western Australian Planning Commission (WAPC); (2) The following Use Classes apply within the precinct: (3) Occupancy within the curtilage of workers' accommodation is not permitted; (4) Approval for the placement, erection or affixing of satellite dishes, masts and aerials and the like to a dwelling and/or its curtilage, is at the discretion of the responsible authority; (Page 12)
26 Pursuant to cl 3.2, 'AA' use class means that the Council may, at its discretion, permit the use. 'P' use class means that the use is permitted provided it complies with the Scheme and any conditions imposed by the Council in granting Planning Consent. 27 The Scheme defines the Workers' Accommodation land use as follows: Workers' Accommodation: means a dwelling or residential building occupied by a person who is: AMD 6 GG 27/2/09 (a) engaged in active employment in Coral Bay; (b) the owner (whether in whole or part) and operator of a business having its main offices in Coral Bay and which principally services or operates within Coral Bay, where that person is also currently actively involved in the operation of the business on a day to day basis in Coral Bay; or (c) a spouse, partner or dependant child of a person referred to in paragraph (a) or (b). 28 The definition and provisions for the workers' accommodation precinct were introduced by Amendment 6 to the Scheme (gazetted 27 February 2009). 29 The respondent's report for the then Minister for Planning and Infrastructure in 2007, relating to Amendment 6 to the Scheme, stated that workers' accommodation in Coral Bay is to be leasehold, as it is not considered appropriate to have freehold residential development. 30 Clause 3.5.2.6 of DZS 11 requires that land use and development within the Workers Accommodation Project be in accordance with an Outline Development Plan. In September 2010, a document entitled Lot 308 Coral Bay Workers Accommodation Village Outline Development Plan (ODP) was submitted by BACV to the Shire for approval. The ODP was adopted by the Shire on 23 November 2010 subject to minor changes, and in January 2011, the respondent resolved to endorse the ODP. 31 The ODP commences as follows: The attached Outline Development Plan (ODP) (Appendix 1) is based upon the approved Coral Bay Settlement Plan and the Coral Bay Workers Accommodation Village Plan (2006). This project is to allow for the sustainable development and management of workers' accommodation for a population of up to 400 people, including workers, partners and dependants (under 18) that meets the needs of the Coral Bay workforce. (Page 13)
32 In relation to land tenure, at cl 2.6, the ODP states: The Ningaloo Coast Regional Strategy precludes the release of freehold residential land in Coral Bay. This notwithstanding, the Minister for Lands, vested by the Authority in him, determined in October 2010 to grant freehold title to the village in order to assist with the viability of the development. Accordingly, this structure plan is capable of being implemented under a variety of land tenure models. 33 In dealing with planning context, the ODP acknowledges the NCRS, and states that the ODP 'is underpinned by and consistent with' the NCRS. In relation to the Coral Bay Settlement Plan, the ODP states: The settlement plan acknowledges that adequate dedicated workers' accommodation has not been provided in Coral Bay and the moratorium on development will be upheld until appropriate workers' accommodation is provided at which point the additional housing for residential development will be pursued. The existing workers' accommodation has developed haphazardly with a significant number of substandard structures contributing to undesirable living conditions for workers. The settlement plan stipulates that workers are to be accommodated in a purpose-built facility within the settlement, which will have its own community area and be located away from the main hub of tourist activity. There will be a range of accommodation suitable for singles, couples and families, the latter group being poorly catered for at the moment. Planning of the accommodation should allow for flexibility in order that dwelling types can be converted easily from single person dwellings to family homes as demand requires. The workers' accommodation will be available only to those who work in Coral Bay. 34 The proposal underlying the ODP is described at cl 4.1 as follows: The Outline Development Plan proposes the staged development of the site which has been designed to accommodate any future expansion of the village should an increase in capacity be required to house any planned or allowable increase in the Coral Bay workforce. Once services have been provided to the site, then the provision of roads and servicing throughout the development will take place. This will allow for the allocation of the internal lots and the initial construction of government houses (built to GROH specifications for north areas) on site. Sufficient land exists within the site to accommodate future expansion of the site if deemed necessary. This will cater for government employees, permanent and visiting, who are currently unable to live in Coral Bay due to a lack of suitable accommodation. It is anticipated that dwellings constructed in accordance with the principles outlined in this Outline Development Plan would be exempt (Page 14)
from local government planning approval and would require a building licence for approval. The lot sizes shown are intentionally indicative, to allow for some flexibility at the time of development in terms of housing types. Lot sizes would range from 350 sqm to 450 sqm. The range of accommodation provided will reflect the needs of the existing and desired workforce. Currently, there is a predominance of young, single workers and the Strategy recommends that in the future couple and family groups should be better provided for. This Outline Development Plan has adopted a flexible approach to dwelling design and site layout that gives it the ability to adjust to change over time and to respond to changes in the distribution of household types. 35 The ODP describes the provision of recreational facilities as 'a key factor in the social sustainability of the workers' accommodation development', and notes that community consultation found that workers wished to be housed and recreate away from the tourism accommodation. It concludes: The Coral Bay workers' accommodation village has the potential to be a fine example of how appropriately planned and designed accommodation can act as a catalyst for attracting singles, couples and families to live and work in Coral Bay for long periods in an environmentally sensitive setting with obvious social, environmental and economic benefits.
The proposed subdivision 36 BACV's application proposes a subdivision of the subject land into 49 lots, being 47 residential lots, one lot which is leased to the Government for the purpose of seasonal workers' accommodation, and the balance being comprised of public open space. The application identifies the proposed use of the land as 'seasonal staff accommodation/workers' accommodation/residential lots'. It is proposed as Stage 1 or a larger subdivision of the balance of Lot 308. 37 In accordance with its usual procedures, the respondent referred the application to a number of authorities including the Shire of Carnarvon (Shire) and the Water Corporation, being the two authorities which raised objections to the proposal. 38 The Shire noted that the NCRS provided that the Workers Accommodation Village should be provided by leasehold and suggested that, by implication, freehold tenure should not be provided for. It advised that it was not prepared to accept responsibility for the ongoing management of the proposed roads and open spaces, and indicated that it was prepared to favourably consider and support a strata subdivision of (Page 15)
lot 308 'consistent with the subdivisional layout as illustrated on' the plan of subdivision accompanying the application. 39 The Water Corporation responded by letter dated 1 December 2011 advising that it objected to the proposed subdivision 'based on it being a significant departure from the planning strategy on which our infrastructure has been planned and the agreements and the community service obligation with Government on how the scheme will be operated and funded'.
The context of the application 40 As mentioned above, this application forms a step in a long process of negotiation between various government representatives and the Baiyungu people in relation to the subject land and other land which forms part of the area traditionally owned by the Baiyungu people. Because that context is heavily relied upon by the applicant as a relevant consideration in relation to the present application, it is necessary to recount that history. Evidence in that respect was provided to the Tribunal by Mr Bridge, a consultant who has been engaged in dealings with Government on behalf of the Baiyungu people, and who is a beneficiary of a trust whose trustee is a shareholder in BACV. 41 Mr Bridge explained, and it was not in issue, that within the townsite of Coral Bay, there is a caravan park which accommodates local workers, both temporary and more permanent. For some time, the accommodation of workers at the caravan park, commonly referred to as 'Little Kenya', has been considered 'a blight on the townsite' and both the Shire and the State have been anxious to move workers from that location to a suitable dedicated location elsewhere in close proximity to the Coral Bay townsite. 42 BAC was the owner and operator of a pastoral lease which was acquired in 1997. The pastoral lease adjoins the Coral Bay townsite and included, at the time of the granting of the lease, a significant coastal strip along the Ningaloo Coast. 43 In early December 2002, BAC received a letter from the then Minister for Lands dated 27 November 2002 which was a notice under the LandAdministration Act 1997 (WA) of the exclusion of an area of the pastoral lease when its renewal (which had apparently previously been agreed) was to commence on 1 July 2015. The letter advised that BAC was required to take one of the following actions in relation to the notice: 1) accept the exclusion conditions set out in the letter; (Page 16)
44 BAC chose the third option and entered into negotiations with the Department of Lands. 45 Mr Bridge said that: Why the BAC sought to acquire the pastoral lease was to enable their vision of providing the BAC members, including their children and their children's children, with an opportunity to become involved in sustainable and commercially viable products, including potential tourism opportunities, that were associated with their traditional lands. 46 One such opportunity, which BAC identified, was to become involved 'in any projects which proceeded from the planning objectives outlined in the [NCRS] …'. 47 Mr Bridge explained that BAC saw the negotiations in relation to the exclusion of land as an opportunity for the Baiyungu people to 'build the foundation of projects they could use to remove themselves from the shackles of welfare and reconnect with their land by becoming commercially involved in sustainable and economically viable projects'. 48 Following a meeting in September 2004, Mr Bridge expressed concern that discussions were focusing on consideration of the provision of benefits that dealt with Aboriginal heritage support, and that it was necessary that the negotiations should also be aimed at providing BAC with sustainable economic, financial, social and cultural opportunities. 49 Eventually, in December 2004, a document was executed by various parties, including the applicant and the Minister for Lands, agreeing to the exclusion of two areas of the pastoral lease, referred to as the Townsite Area and the Coastal Strip (2004 Exclusion Agreement). In consideration for that surrender, BAC was granted a lease over the Bruboodjoo Point Tourism Node for a term of 21 years with an option for a further 21 years, and the Minister for Lands 'committed to negotiate with the registered Gnulli native title claimants to reach an agreement for implementing the planning strategy for the Coral Bay townsite'. (Page 17)
50 Further negotiations ensured ultimately leading to a letter dated 17 January 2006 from the then Minister confirming that provisions of the exclusion agreement and providing the following benefits to BAC: i provision of a 21 year lease for the Bruboodjoo Tourism Node and a further 21 year option; ii provision of a conditional option to the BAC for a 50 year lease with a 25 year option for the workers' accommodation site in the Coral Bay Settlement Plan; iii provision of conditional freehold title for the exclusive use of the BAC over a portion of the Mixed Use site in the Coral Bay Settlement Plan; iv an option to be exercised by the BAC in relation to the leasing, management and/or servicing of any new airport; and v an allocation of additional land for the servicing of the airport and passing traffic with fuel supplies. 51 Those benefits were conditional upon the surrender of both the townsite area and the coastal strip by 31 December 2005 and 31 December 2006 respectively, and agreement being obtained from the Gnulli registered native title claimants that all native title Future Acts required for the implementation of the specific developments contained in the Coral Bay Settlement Plan will proceed without objection. 52 In March 2006, BAC, through Mr Bridge, provided a formal resolution which satisfied the condition relating to the native title claimants and confirmed BAC's support for the other benefits provided for in the Minister's letter of 17 January 2006. 53 In mid-2006, feasibility works were done with a view to developing the Workers Accommodation Project. It is apparent that process led to concerns about the financial viability of the Workers Accommodation Project as originally contemplated. 54 On 21 July 2006, Mr Bridge wrote to the then Minister for Planning and Infrastructure suggesting that a contribution from Government of between $13 million and $17 million would be required to underwrite the viability of the project. Given that that funding was unlikely to be provided, the letter set out various alternatives which had been considered with a view to achieving the objective of providing workers accommodation. (Page 18)
55 Throughout 2006, difficulties with the viability of the Workers Accommodation Project continued to emerge. 56 On 20 February 2007, the then Minister for Planning and Infrastructure wrote to Mr Bridge, noting that she had extended time for signing of the early surrender of the excluded areas to 21 February 2007. The letter confirmed that Cabinet had approved the grant of an option to lease an ecotourism accommodation site in Coral Bay on the same terms and conditions as agreed for the workers' accommodation site, saying that that proposal was designed 'to support the viability of the workers' accommodation site'. Certain conditions associated with the proposal were also set out. The letter stated that the Department of Planning and Infrastructure would prepare a 'framework agreement' to consolidate and provide certainty in relation to the various matters agreed with BACV relating to the exclusion. 57 Mr Bridge then embarked upon discussions with various potential developers and others with a view to progressing the Workers Accommodation Project. Those discussions led Mr Bridge to conclude that the Workers Accommodation Project was not viable if BAC merely had the proposed leasehold interest in the land on which it was to be developed, at least in part because of difficulties in obtaining finance in respect to development on a leasehold land. 58 In April 2008, Mr Bridge met, in company with a number of developers and others, with the Minister and explained that the Workers Accommodation Project would not be commercially viable unless BAC were afforded freehold title. The Minister was not prepared to agree to a grant of freehold title, but apparently did agree to extending the term of the leasehold and suggested that the eco resort site could be offered for freehold once certain milestones had been achieved. 59 Subsequently, in the first half of 2008, various proposed development partners indicated that they were not prepared to proceed with the proposed Workers Accommodation Project essentially because of the absence of any freehold title. 60 Following the change of government in August 2008, Mr Bridge began negotiating with the new Minister for Lands, Mr Grylls. At that stage, the proposed framework agreement had not been completed. In early 2009, the Minister agreed to complete the framework agreement and on 23 June 2009, a document entitled 'Framework Agreement Cardabia (Page 19)
Pastoral Lease, Coral Bay Townsite, Ningaloo Coast etc' was signed (Framework Agreement). 61 Clause 2 of the Framework Agreement set out the parties objectives. They read as follows: (a) The Workers Accommodation Project is critical to the development of Coral Bay in that: (i) the State's policy is to establish Coral Bay as one of the State's top tourism destinations; (ii) there is increasing development pressure in Coral Bay; (iii) the State has made and is making significant investment in the construction of public infrastructure in Coral Bay; (iv) the existing workers' accommodation in Coral Bay is inadequate and sub-standard; and (v) the State has applied a moratorium on other development in Coral Bay until the Workers Accommodation Project is developed. (b) The BAC wishes to achieve positive economical, financial, social and cultural outcomes for the BAC, and the Baiyungu and the Gnulli people in Coral Bay and along the Ningaloo Coast, and the State wishes to promote and support the achievement of this objective. (c) In order to achieve some of the objectives set out in subclauses (a) and (b), and to support the financial viability of the Workers Accommodation Project, the State has agreed to grant the Ecotourism Accommodation Freehold to the BAC. (d) The State wishes to achieve early outcomes in the implementation of the Exclusion Agreement and the exclusion agreements for the Ningaloo Coast Pastoral Leases generally, including the grant of the relevant tourism leases and various agreements, and the creation of a conservation, or conservation and recreation reserve along the Ningaloo coast. 62 The Framework Agreement provided for the surrender of the areas the subject of the 2004 Exclusion Agreement and for the grant of a lease to BAC of the workers' accommodation lease area and the grant of a freehold title to BAC of the ecotourism accommodation area. It also provided for the ultimate transfer to BAC of a Mixed Use area and for investigations to be undertaken with a view to the grant of an Adventure Education Camp Lease to BAC. The Framework Agreement provided, (Page 20)
subject to the outcome of the review as the requirements for airport facilities in Coral Bay, for the grant of an option to BAC for the rights to manage and provide services to the Coral Bay Airport and potentially for the grant of an option to take a lease of land for the purpose of a service station to support the airport. 63 Clause 13.6 of the Framework Agreement dealt with statutory planning processes and provided that: The BAC acknowledges and agrees that nothing in this Agreement limits or affects the powers or discretions of the Western Australian Planning Commission (or any of its Committees), the Shire of Carnarvon or any other relevant statutory or Government authority having a power of approval, in considering and making a decision in respect of any application for approval. 64 Shortly after the Framework Agreement was executed, BAC provided the necessary surrender documentation and obtained endorsement from the native title claimants of the Framework Agreement and withdrew a caveat over the pastoral lease which enabled the surrender of land to be registered. 65 Mr Bridge then recommenced negotiations in relation to the Workers Accommodation Project with potential development partners. One such developer, the Alcock Brown-Neaves Group eventually concluded, in March 2010, that without tenure by freehold of the site, and the workers' restriction being lifted, the project would not be commercially possible. 66 Subsequent to that advice being received, Mr Bridge met with the Minister for Lands, Mr Grylls, and Mr Alcock of Alcock BrownNeaves Group. Mr Grylls subsequently wrote to BAC in April 2010 putting forward the following proposals: (Page 21)
sites on Coral Bay Lot 308, release of house and land packages should be done on the basis of GROH first, local business second and then open market. 3. It is also noted that the current Ningaloo Coast Regional Strategy Carnarvon to Exmouth 2004 and Department of Planning (DoP) coastal policy do not support residential subdivision development in Coral Bay. However, I understand DoP is currently reviewing the strategy and I have therefore written to the Minister for Planning, Hon John Day MLA, seeking the inclusion of this proposal in that review. … 6. As an interim solution to meet immediate accommodation needs for the coming tourist season, it is proposed that the State purchase transportable units for an agreed number of workers and provide funding assistance in the development of a temporary camp. This camp could also be used to house construction workers during development of housing on Lot 308. The State would remove the transportable units on completion of construction. 67 As foreshadowed in paragraph 3 of the letter set out above, Mr Grylls wrote to the Minister for Planning on 22 April 2010. His letter read as follows: AFFORDABLE WORKERS ACCOMMODATION IN CORAL BAY The provision of affordable workers accommodation in Coral Bay has been the subject of extensive planning, consultation and negotiation over a number of years. The current Ningaloo Coast Regional Strategy Carnarvon to Exmouth 2004 and Department of Planning (DoP) coastal policy provide for a Workers Accommodation site in the Coral Bay Settlement Plan. It has become evident that the provision of affordable housing is not economically viable without substantial subsidisation. It is therefore proposed that, under an agreement with the Baiyungu Aboriginal Corporation (BAC), the Department of Regional Development and Lands will grant Coral Bay Lot 308 to the BAC in freehold on the condition that a portion is developed for a workers village. To offset the cost of construction and provide affordable rents, the BAC would need to develop the balance of the lot for residential subdivision and release as house and land packages, first to Government Regional Officer Housing, then to local business's then on the open market[.] However, the current planning strategy and policy do not permit residential subdivision development in Coral Bay, I understand officers in DoP are currently reviewing the strategy and I request that the ability for residential subdivision development be considered as part of that review. (Page 22)
68 Mr Bridge said that in discussions which followed with the Department of Lands and the Minister's Office, BAC were told that they would be granted a freehold title subject to BAC granting a peppercorn lease to the State for a portion of the Workers Accommodation Project site to allow the State to develop and provide seasonal staff accommodation. 69 In September 2010, an ODP was submitted by BAC to the Shire of Carnarvon for approval. In October 2010, Mr Grylls signed a land transfer form issuing Lot 308 to the applicant as a freehold title. At the same time, the lease back to the State of the area on Lot 308 for the seasonal staff accommodation facility was executed. 70 As noted above, the ODP was endorsed by the respondent in January 2011. 71 The present application to subdivide Lot 308 was lodged by the applicant on 30 August 2011.
The grounds of the respondent's refusal 72 The refusal of the application to subdivide the land became the subject of these proceedings. Following mediation in the Tribunal, the matter was referred back to the Western Australian Planning Commission (WAPC) for reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). The decision by the respondent to refuse the application was affirmed. The reasons for affirmation of the original decision were the same as those given for the original refusal and were expressed as follows: 1. Inconsistent with the Ningaloo Coast State Planning Policy 6.3: a. Policy Objective 2. Maintain the Ningaloo coast as an all-seasons recreation and naturebased tourism destination and limit growth with managed staged development, to ensure that the community continues to enjoy a remote and natural experience. b. Policy Objective 4. Consolidate future residential, commercial, higherimpact tourism and industrial development in the Towns of Carnarvon and Exmouth and provide strategic directions for their future growth. 2. The subject land is within the area covered by the Ningaloo Coast Regional Strategy Carnarvon to Exmouth that provides a State level strategic planning framework for the area where freehold subdivision in Coral Bay is not supported. (Page 23)
3. The proposed subdivision does not comply with the Commission's Policy DC 1.1 (Subdivision of Land - General Principles) that is a provision of Statement of Planning Policy No. 1 (Variation No. 2) - State, Planning Framework Policy for the reason that the water supply scheme servicing the Coral Bay town site is designed to provide an 'inhouse' service only and is not designed to provide a water service to allotments. To enable the water supply to be redesigned to provide a service to subdivided land, substantial upgrades and improvements would need to be made to the scheme which would be costly and time consuming. 4. A regional planning review is currently being considered by the Gascoyne Regional Planning Committee through the preparation of the Gascoyne Regional Planning and Infrastructure Framework therefore, the application is premature in as much as the current State Planning Policy and Regional Strategy do not support freehold subdivision for workers' accommodation in Coral Bay. 5. Freehold subdivision to create lots in this location is considered inconsistent with orderly and proper planning as the proposal does not address future management arrangements of the lots to be created including the maintenance of public open space and the internal street network. 6. Approval of this application will set an unacceptable precedent with regard to the creation of freehold lots in an area where several high level strategic documents, all created with a high level of stakeholder engagement, have advised against such land tenure arrangements.
Review of planning for Coral Bay 73 In May 2012, Aurecon Australia Pty Ltd was appointed as lead consultant by the Shire of Carnarvon to prepare a Structure Plan for the Settlement of Coral Bay. It prepared a draft report dated 27November2012 (AureconReport). 74 In its introduction, the AureconReport states that the proposed structure plan presents a timely opportunity to review SPP 6.3 and DZS 11. 75 The Aurecon Report discusses the purpose of the proposed Structure Plan at cl 1.2 where it is said: The aim of the Coral Bay Settlement Structure Plan is to establish a clear direction for thefuture planning, development and infrastructure coordination for the townsite over the next 25 years. Consideration will be given to the projected growth of Coral Bay as one of Western Australia's (Page 24)
premier tourist destinations located on the coastline of the Ningaloo Reef World Heritage Area. The Structure Plan is intended to replace the Coral Bay Settlement Plan (2004) and Coral Bay Precinct Plan, both contained within the Shire of Carnarvon District Zoning Scheme No. 11. Additionally, relevant statute provisions will be prepared for inclusion in the Shire's draft Local Planning Scheme No. 13. Consideration shall be given to the various Outline Development Plans (ODP's) that have been prepared by private owners over numerous land holdings in thetownsite as to whether they accurately reflect the desired development type, scale and layout of the townsite. Once endorsed, the Structure Plan will provide the reference for the future local planning, subdivision and development within Coral Bay. Typically it is considered that the Structure Plan would be reviewed ideally at 5 year intervals. 76 At cl 3.9.2, the Aurecon Report makes reference to the NCRS noting its planning objective: To prevent the development of any residential land in Coral Bay (apart from worker's accommodation) and direct residential development to Carnarvon and Exmouth. 77 It identifies the implications of residential development in Coral Bay as 'in all likelihood fundamentally [changing] the nature of the socioeconomic base of the settlement and arguably advance the settlement on the path towards its establishment as a (more or less) normalised regional town'. It continues: The justification for this observation includes: • Establishment of residential freehold land at Lot 308 may set a precedent for further residential development of the settlement • While the intention behind the development may be to offer, in the first instance, Coral Bay's resident worker population the opportunity to purchase freehold residential lots as a means to developing permanent housing, it is unclear as to what the take-up rate by locals of the development lots might be. If local take-up rate is less than 100%, then it follows that, for the development to be feasible, any residual lots would need to be made available on the open market. Once local demand has been met, along with any prospective new employment driven demand from areas such as new government service provision in the settlement, then the general take-up of residual lots would result in an increase in the resident population of Coral Bay (this of course assumes that there (Page 25)
is no regulatory mechanism to effectively control any prospective use of residential properties for private holiday rentals) • The introduction of a larger population as suggested by the Lot 308 development implies an increased demand for population driven services and infrastructurein the settlement. This may extend to increased demand for retail, entertainment and commercial / office floorspace which in turn generates an iterative effect of increased employment and subsequent demand for residential accommodation The issue of the Lot 308 Outline Development Plan raises some fundamental questions about the future positioning of the Coral Bay settlement. The core of this discussion is essentially about whether the settlement should be limited to tourism uses as suggested by the NCRS or whether it might include residential development. This discussion in turn raises a number of key points including: • Determination of the optimal carrying capacity of the settlement such that environmental impact is minimised and the 'character' of the settlement is not jeopardised • If the settlement is to include residential development, what is the optimal scope, location and configuration of such development? And if there is a ceiling to any such development, how is it determined? • If residential development was considered appropriate (in principle), what is the optimal scale of development that would be considered commercially feasible for a developer to undertake? And by association, what might be the 'go/no go' investment trigger points for any such development? 78 At cl 3.9.5.1, the Aurecon Report considers the questions of accommodation, affordability and residential take-up. It identifies annual median income for individuals in Coral Bay based on ABS 2011 Census and Colliers International Research, as $31,824, median household income is $35,360 and median family income is $73,362. Mr Bridge said that he thought that those figures were likely to be quite accurate. The Aurecon Report concludes that that level of income makes it unlikely that existing residents, in the main, would be able to afford conventional freehold land and housing options. 79 The Aurecon Report identified a number of key issues to be considered for the Structure Plan. In respect of the potential expansion of tourist accommodation, the report recommended that additional growth be targeted on Lot 308 for holiday homes. In relation to the provision of permanent workers' accommodation, the report made several (Page 26)
recommendations including that workers' accommodation be provided on Lot 308 under a survey strata model. As to residential subdivision on Lot 308, the report suggested that the residential portion of that lot should be placed in a 'Holiday Home Precinct' with freehold subdivisions supported for the purposes of 'holidayhome accommodation' only. 80 The Aurecon Report was submitted to a Working Group for consideration. The Working Group presented a report to the Shire council. The report noted that the primary purpose of the Aurecon Report is to identify opportunities and constraints to be incorporated and suitably addressed in the proposed Structure Plan. The report annexed a table containing the various comments of different Working Group members on the key issues identified in the report. It noted that there were a couple of issues that were contentious with Working Group members being divided in opinions. One of those contentious issues was the proposed residential subdivision of Lot 308. The report to council noted that '[o]n some issues, most notably Issue 8 (Residential Subdivision of Lot 308), the Working Group members that commented opposed the recommendation. Their opposing views are presented here to Council, however it is the officer's recommendation that their views will not address nor resolve the political issues embedded in this process'. The comments attached in the table to the report suggest quite strong reservations, if not opposition, to the proposal in relation to residential subdivision on Lot 308. 81 The Aurecon Report has not been advertised for public comment, but merely forms a working document to enable development of the proposed Structure Plan to continue.
The nature of the proposed use of the land 82 The applicant puts its case on the basis that the subdivision presently under consideration represents what it would see as Stage 1 of subdivision of the total area of Lot 308. Lot 308 comprises 30.3275 hectares. The current proposal relates to an overall area of 4.4235 hectares or just under 15% of the total area. The application suggests that it is for the provision of lots for workers' accommodation/residential development. 83 Mr Bridge told the Tribunal that the proposal is that the lots, once created, would be offered first to those who can be described as workers in Coral Bay and that BAC had received indication that some 10 lots would be taken up by government departments for the purpose of housing employees. It is proposed, however, that once that take-up by employees was in place, the lots should be available for sale to the public generally. In his witness statement, Mr Bridge said: (Page 27)
The applicant's case therefore, is that the use permissibility prohibitions will ultimately have to be removed, and the initial intended objective of providing the Baiyungu people with an economically sustainable future will ultimately have to be achieved by permitting the applicant to subdivide the lots of the subject land and sell them to anyone who wishes to buy them to build a residence, regardless of whether they work in Coral Bay or not. 84 Mr Bridge's statement reflects the reality which the Tribunal readily accepts. That is, the development of accommodation limited only to workers in Coral Bay is not economically viable for the Baiyungu people in the absence of substantial funding from government. The point is illustrated by the difficulties with the take-up of the accommodation provided in the seasonal workers' accommodation now provided by government on the area of land leased for that purpose from BAC. The Tribunal was advised that that accommodation, which cost somewhere in the vicinity of $15 million, was only able to be filled when the restriction to seasonal workers was lifted, so that any worker in Coral Bay could take up the accommodation. It seems clear that, given the capital investment required, that development could not have been viably undertaken by a private developer. 85 The reality of the situation is that this subdivision will only proceed if it is possible to sell the land on to the open market. 86 That position is made clearer by virtue of the fact that, in recent times, the available, or potentially available, accommodation for Coral Bay workers has increased significantly. BAC itself argued that the potential accommodation available to workers in Coral Bay now exceeded the planning estimates as to the number of workers required for the settlement, thus substantially eroding any market amongst Coral Bay workers for BAC's proposed lots which inevitably will be less affordable. 87 Accordingly, we are of the view that the proposed subdivision, especially if viewed as merely Stage 1 of the project, necessarily preempts the outcome of the planning review which is currently underway. It is unrealistic, in our view, for the applicant to argue that the planning objective of providing workers' accommodation can be met, other than in a relatively minor and incidental way, by approval of this proposal.
Should the application be approved? 88 It is clear that approval of this subdivision would be contrary to the currently applicable planning instruments and policies. All of the existing (Page 28)
policies and instruments point to the use of Lot 308 as a discreet and separate workers' accommodation facility, and expressly disavow general residential subdivision within the Coral Bay townsite. 89 SPP 6.3 has, as a key objective, the consolidation of future residential development in the towns of Carnarvon and Exmouth, and the maintenance of the Ningaloo Coast as 'an all seasons recreation and naturebased tourism destination' ensuring that the community 'continues to enjoy a remote and natural experience'. SPP 6.3 expressly states that no application will be approved within Coral Bay which is inconsistent with the Coral Bay Settlement Plan, and that no applications for higherimpact residential developments will be improved unless they are within the townsites of Carnarvon and Exmouth. 90 The NCRS has an objective of providing for the development and management of leasehold workers' accommodation, and expressly states that the workers' accommodation will not be freeholded. The NCRS states that Coral Bay is not considered an appropriate location for freehold residential land release. 91 DZS 11 specifically contemplates workers' accommodation on Lot 308. 92 The ODP is quite clearly focused upon the development of a workers' accommodation precinct rather than general residential subdivision. All of those provisions strongly support the refusal of the application. 93 The development of a significant residential subdivision (particularly where it is expressly suggested to be Stage 1 of a potentially much larger subdivision) raises significant questions as to both the logical and efficient provision and maintenance of infrastructure (to use the words of SPP 1), and throws up for consideration the need for strategic land use planning in order to ensure sustainable settlements and communities as contemplated in SPP 1 and SPP 6.3. 94 The planning review underway, of which the Aurecon Report is a preliminary step, will facilitate the orderly consideration of all of the planning considerations which might bear upon any change in the approach to planning in relation to Coral Bay which underlies the existing planning regime. To approve the application for subdivision now would, as we have concluded above, preempt that process. The objections and reservations expressed by members of the Working Group as the suggested development of Lot 308 suggest that the outcome of the review, (Page 29)
so far as Lot 308 is concerned, is far from predictable. Approval of the present application would not represent orderly and proper planning and should be refused on that basis. 95 In reaching that conclusion, we have taken into consideration the references to planning objectives relating to the economy, and regional development referred to SPP 1 and SPP 6.3. We are also mindful of the clear purpose evinced in the negotiations between BAC and the government, leading to the Framework Agreement, which had as part of their purpose an intention to provide longterm opportunities and financial security to the Baiyungu people. It is quite clear that, as the lack of viability of the Workers Accommodation Project as originally contemplated became clearer, various ways of assisting the Baiyungu people so that they could undertake the Workers Accommodation Project were introduced. An example is the agreement by the State to grant the ecotourism accommodation freehold to BAC. It is quite clear that Mr Grylls had in mind that an open market sale of subdivided lots on Lot 308 might also achieve that objective. 96 The applicant submits that the State, through the Minister for Lands, has supported the idea of subdivision and sale of lots on the open market and that that is a relevant (and it argues significant) consideration in favour of the grant of approval. 97 The apparent support by the Minister for Lands of the current proposal was, appropriately, qualified by an acknowledgement that current policies do not support residential subdivision in Coral Bay. The Minister for Lands urged that what is proposed should receive favourable consideration in the context of the review of the planning strategies for Coral Bay. That qualification is expressed in Mr Grylls' letter of April 2010 to BAC, his letter to the Minister for Planning on 22 April 2010, and cl 13.6 of the Framework Agreement. The recommendation by Mr Grylls could not, and doubtless was not intended by the Minister to, override the operation of the process of proper planning review. 98 The Tribunal was not presented with any feasibility analysis to suggest that the longterm and sustainable economic and social benefits which BAC asserts would be served by approval of the application would, in fact, be realised by the proposed subdivision. Mr Bridge said that the benefits would flow by the realisation of a profit on each progressive stage of the development of Lot 308. Precisely how that translates to the 'positive economical, financial, social and cultural outcomes' sought by (Page 30)
BAC was not the subject of any analysis before the Tribunal, and appears simply to be assumed. Whether the assumption that ongoing subdivision of residential land on Lot 308 might be appropriate (and viable) will be far better informed once the orderly process of planning review has been completed. To the extent, therefore, that the applicant's case rests on the proposition that planning objectives associated with regional development and wealth creation provide a basis for approval of its application, the submission rests on assumption and assertion, rather than any cogent evidence. For that reason, we do not consider it appropriate to place much weight on that consideration. Even if, however, we were to accept the assumption that approval of the proposal would lead to the achievement of economic and financial benefits to BACV (and in turn, BAC and Mr Bridge's trust shareholders) we do not consider that that factor alone would justify the preemption of the outcome of the planning review which is still in its early stages. Approval of the project on that basis would not represent orderly and proper planning. 99 It is to be noted that both the Shire and the respondent intimated a preparedness to approve a strata subdivision configured in a way represented by the plan of subdivision in respect of which the applicant seeks approval. There is considerable force in the applicant's arguments that an approval of a strata subdivision would raise similar infrastructure considerations as apply in relation to a green title subdivision. On the other hand, we accept the view expressed by Mr Ian Darcy, the Executive Manager Development Services at the Shire of Carnarvon, that s 5C(2) of the Strata Titles Act 1985 (WA) would enable specific bylaws to be included in a management statement as a condition of approval of a strata scheme which could serve to regulate the use of land for workers' accommodation only. A strata development would also have the benefit, from the Shire's perspective, of placing responsibility for maintenance and upkeep of areas of common property on the strata company rather than the council which currently does not have facilities in place to attend to those matters in Coral Bay. 100 There is no doubt, as the applicant submitted, that very significant practical problems might arise if there is a limitation of occupancy of homes, whether subject to strata title or green title, to Coral Bay workers. For example, an owner of the property ceases to be a worker in Coral Bay, how are they to deal with their property which may not only be their home, but also represent a very significant part, if not all, of their assets. It is no doubt concerns of that nature which underlie the approach found in the NCRS and the Coral Bay Settlement Plan which contemplates that (Page 31)
the workers' accommodation would be provided through leasehold rather than freehold tenure. 101 For our part, difficulties of that nature raise serious questions as to whether the preparedness of the respondent to approve a strata title subdivision broadly in the form proposed in the present application represents a sound planning decision. Much may depend on the ultimate form of any such proposal, including the terms of any proposed bylaws. That is not, however, a question which falls for determination by us in these proceedings. It is sufficient to say that we do not consider that, because some of the practical difficulties associated with confining development only to workers in Coral Bay apply to both a freehold subdivision and a strata title subdivision, that is a reason to approve the freehold subdivision.
Conclusion 102 For the foregoing reasons, we are of the view that the decision of the WAPC to refuse the application should be affirmed.
Order 1. The decision of the respondent dated 25 January 2012 to refuse the application No 144810 for subdivision of land situated on Lot 308, Banksia Drive and Robinson Street, Coral Bay, is affirmed. |