BACHOS and SHIRE OF MANJIMUP - [2014] WASAT 61

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BACHOS and SHIRE OF MANJIMUP [2014] WASAT 61

MEMBER: MR J JORDAN (MEMBER)

HEARD: 27 FEBRUARY 2014

DELIVERED : 28 MAY 2014

FILE NO/S: DR 420 of 2013

BETWEEN: RYAN BACHOS
Applicant
AND
SHIRE OF MANJIMUP
Respondent

Catchwords:

Town planning - Development - Application for retrospective approval of excavation works already completed on land predominately outside the lease area and prospective planning approval for extension of a rock rubble retaining wall to retain excavated area - Conditions imposed - Condition requiring vehicular access from roadway to adjoining site across applicant's site being restored to a trafficable standard - Applicant's lot and neighbouring lots leasehold within a reserve - Land within a special uses zone - Windy Harbour Management Plan - Guidelines for Development Standards, Design and Landscape at Windy Harbour - Windy Harbour Design Code Historical informal access arrangements in Windy Harbour - Development approved on the site by local government including new septic system - Potential impact of vehicle movement on septic system 'Newbury' test for conditions Planning purpose of conditions Ulterior purpose include in conditions Conditions amended to require reinstatement of sufficient sand for potential informal access

Legislation:

Shire of Manjimup Local Planning Scheme No 4, cl 10.2, cl 10.2(xvii), Schedule 6
Planning and Development Act 2005 (WA), s 252(1)
Health Act 1911 (WA)
Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA)

Result:

Application for review allowed in part
Approval of excavation subject to restoration of soil removed to extent that a vehicle be able to drive up and reverse down the slope in the reserve between ground level of Site 101 and Site 102 and the road, without impact on septic tanks
Approval of the retaining wall subject to it being located and built to retain the restored soil
Any bollards installed to be located to protect septic tanks but not intrude unnecessarily into any potential accessway

Summary of Tribunal's decision:

The lessee of Site 101 in Windy harbour received planning approval for extensions to his house and this included approval for the installation of septic tanks at the front of the house. In addition to completing the approved development soil was also excavated from the reserve at the front of the site and this had the effect of removing a previously existing informal vehicle access across the reserve and the corner of Site 101 to Site 102.
Applications for a retaining wall and for retrospective approval for the excavation were approved subject to conditions that required the applicant to restore a trafficable vehicle access to Site 102. The applicant applied for review of the conditions on the basis that they were not for a planning purpose and did not relate to the approved development and for these reasons were unreasonable.
The Tribunal found that the conditions included what might be considered an ulterior purpose. That is, to make formal a vehicle access arrangement that was previously informal. The Tribunal concluded that planning conditions imposed on an approval of sand excavation were not an acceptable mechanism for creating this legal burden on the lessee of Site 101. The Tribunal was of the view that any formal legal burden is more appropriately dealt with as part of the formal lease agreement between the lessor and the lessee.
The Tribunal further determined that it was a proper planning purpose for the conditions of approval to require reinstatement of sufficient soil in the reserve to ensure there continued to be available the potential for an informal and low impact vehicle access path from the road to Site 102, such as has characterised the Windy Harbour settlement, but subject to no adverse impact on the approved septic tanks.
The Tribunal upheld the application for review in part and amended the conditions of approval to reflect these findings.

Category: B

Representation:

Counsel:

Applicant: Mr A McGlue
Respondent: Mr J Algeri (Acting as Agent)

Solicitors:

Applicant: Lavan Legal
Respondent: Algeri Planning & Appeals (Town Planners)

Case(s) referred to in decision(s):

Newbury District Council v Secretary of State for the Environment [1981] AC 578
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Ryan Bachos (applicant) applied to the Tribunal for a review of conditions imposed by the Shire of Manjimup (Shire or respondent) on approvals, respectively, of a retrospective planning application for excavation and a prospective planning application for a retaining wall on and adjacent to Site 101, Windy Harbour (Site 101).
Site 101 is a leasehold lot on 190 hectare Reserve 38881, being portion of Lot 12439 on Deposited Plan 219873. All sites in Windy Harbour are leasehold. A copy of the standard 20 year lease agreement with the Shire as lessor was included in the respondent's bundle of documents.
Reserve 38881 is an A Class reserve which is essentially dunes consolidated over many years by peppermint woodland and grasses. Within the reserve historically holiday shacks were informally built. The decision was made to allow the shacks to remain and lease sites to contain houses were surveyed. Within Windy Harbour are some 220 sites arranged in groups and groups of sites are separated from each other by peppermint bushland. Site 101 is on the western end of one of these groups and although it has a truncation at the western end of the front boundary, to the west of Site 101 there remains the natural topography of dune covered with vegetation.
Access to Reserve 38881 is from Windy Harbour Road. Within Reserve 38881 there are gravel access 'roads' between rows of sites which provide vehicular access to most houses, but not all. There are no separate road reserves within Reserve 38881 as commonly found in settlements. Most sites have on them what might be described as holiday houses, generally built within peppermint trees.

Site 101 measures approximately 329m² and has on it a dwelling with an outbuilding at the rear. Site 101 has had all trees cleared except for some on the common boundary with adjoining Site 102, Windy Harbour (Site 102). The houses in this immediate locality are approximately 1.65 metres above the level of the gravel roadway with a slope down from the sites across the reserve to the roadway.
The reserve in front of Site 101 has been mostly excavated to level with the road. A ‘rock rubble’ retaining wall about 9 metres long and about 1.65 metres high has been built along the front boundary from just within the truncation at the western end to about 4.5 metres from the eastern side boundary. At the eastern end there was previously in place a driveway for two wheel drive vehicles up the slope from the road to Site 101 and across the south eastern corner of Site 101to Site 102. This driveway was partly excavated last year, but inspection has revealed that recently there has been some soil deposited in the excavated area.
The Tribunal viewed Site 101, accompanied by the representatives of the parties and the applicant.

Planning framework

Site 101 is zoned 'Special Use Zone No 5' under the Shire of Manjimup Local Planning Scheme No 4 (LPS 4). Clause 10.2 of LPS 4 lists matters to which it is required to have regard when considering a development application and these include:
(x)the compatibility of a use or development with its setting including the potential impact on the use and enjoyment of adjacent and nearby land and taking into consideration any Special Control Area;
(xvi)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal[.]
Schedule 6 of LPS 4 is concerned with 'Special Use Zone No 5' and has the following conditions of use directly relevant to this matter:
1. Unless otherwise provided for, the use and development of the site is to conform with the endorsed Windy Harbour Management Plan (WHMP) which shall be regarded as an adopted Structure Plan for the purpose of the Scheme and which shall be read in conjunction with the Scheme.
2. The overall objective (Vision Statement) for Windy Harbour is to:
'manage Windy Harbour as a district and regional coastal holiday and recreation destination, while recognising the limited servicing, strong community associations, cultural heritage and environmental context'.
…
7. The local government may prepare and adopt Local Planning Policies for Windy Harbour including guidelines for development standards, design and landscape guidelines. These Policies shall be prepared and approved in accordance with Clause 2.4 of the Scheme. The policies shall be read in conjunction with the WHMP.
8. In determining any application at Windy Harbour the local government is to have regard to:
•the requirements of the WHMP;
•any associated local planning policies; and
•the matters contained in Clause 10.2 of the Scheme[.]
The Shire adopted the Shire of Manjimup Windy Harbour Management Plan 2007 – 2017 (WHMP) in November 2007, this followed a review of an earlier 1999 Management Plan. In respect of tenure, the WHMP states at Part 10.2.1:
… Windy Harbour is Crown Land and included within an 'A' Class Reserve with the designation of 'Recreation, Camping, Caravan Park and Holiday Cottages'. The 'A' Class Reserve classification is used almost exclusively to protect areas of high conservation or high community value. The underlying status of the reserve, is that it is public land with high community value and it is unusual for land within such a reserve to be leased to private individuals. The existence of such an arrangement can be considered as an unusual privilege providing recognition to past actions in developing the settlement[.]
The WHMP at page 36 under 'Plan Statement 4 - Tenure' provides that:
AA Crown Land reserve with leases, rather than freehold lots, remains the most appropriate form of land tenure at Windy Harbour.
BAs the underlying tenure of the reserve is public land, its management must provide for access by the wider community.
Part 10.2.3 of WHMP, 'Lease Boundaries', includes the statement:
Another unique feature of Windy Harbour is that traditionally leaseholders have a right of access across other leases. This is predominantly for pedestrian access although there are some leases which do not have any road frontage. This right to access over boundaries is acknowledged in the conditions of the Lease.
Part 10.2.3 of the WHMP, also states under 'Plan Statement 7 – Lease Boundaries':
BNo fencing is permitted on lease boundaries or in other areas which unreasonably restrict access to or between leases, impact upon the visual and residential amenity of the settlement or change the intrinsic character of the settlement[.]
The Shire has adopted Local Planning Policy LPS4 ‑ 6.1.7 – Windy Harbour Design Codes (Design Codes).
Site 101 is located in 'Precinct 2' of Windy Harbour pursuant to the Design Codes. Clause 1.2 – Purpose ‑ of the Design Codes provides that:
The purpose of this Policy is to:
(i)Act as the development control mechanism required by the Windy Harbour Management Plan and individual site leases;
(ii)Identify the objectives for a variety of design elements for continued development within the Windy Harbour Settlement;
(iii)Set out performance criteria for each design element in order to meet these objectives;
(iv)Establish acceptable development provisions that show one way of satisfactorily meeting the performance criteria; and
(v)Clearly establish the development parameters for Windy Harbour in a manner that is easily understood by leaseholders, the local government and the general community.
Clause 1.3 of the Design Codes lists as objectives:
(i)To ensure new development enhances and protects the existing character of Windy Harbour as a low-impact holiday settlement that responds to its natural surrounds;
(ii)Provide a clear set of design objectives that are based on retaining and enhancing the existing character of Windy Harbour; and
(iii)Provide for individual lease areas to be developed in a manner that is consistent with the character of Windy Harbour, whilst not becoming overly restrictive.
Clause 5.4 of the Design Codes deals separately with vehicle access and pedestrian access. The objective is:
To ensure access and car parking arrangements remain informal and low impact.
Clause 5.4.1, Vehicle Access and Parking, of the Design Codes provides the following table:

Performance Criteria

Acceptable Development

Car and boat parking on and access to lease areas is to be informal and with minimal impact on the topography, vegetation and surrounding lease areas.

a)    Each lease area to allow for the parking of at least one vehicle within the site, except in Precinct 1 where use of communal parking areas is permitted.

b)    Sealing or paving of driveway access or parking areas is not permitted without Planning Approval.

c)    Any earthworks or vegetation clearing required to allow for car parking or access is to obtain Planning Approval prior to works commencing.

Clause 5.4.2 of the Design Codes, 'Pedestrian Access', is directed to ensuring pedestrian access through individual lease areas is not impeded by development.
Clause 3.4 of the Appendix to the Design Codes states with respect to access and parking:
…
An integral part of the character of Windy Harbour is the informal pedestrian access arrangements. Access has traditional [sic] been permitted through each lease area and between cottages rather than limiting pedestrian movements to the roadways as is seen in conventional areas. The WHMP and the Policy both reinforce pedestrian 'permeability' as a key objective to be retained[.]

Background

On 28 March 2013, the respondent granted development approval to Bachos Holdings (WA) Pty Ltd for extensions to the existing holiday cottage on Site 101, subject to conditions that included the effluent disposal system being upgraded. The applicant's proposal that two septic tanks be installed at the front south‑east corner of Site 101, near where the driveway from the road previously had entered Site 101, and the leach tanks be located adjacent to the western boundary was approved by the respondent on 17 May 2013, under the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). Conditions imposed included that the septic tanks be at least 1.2 metres from buildings or boundaries and that the effluent disposal area be adequately protected from vehicular traffic. The effluent disposal system was upgraded in July 2013.
When the septic tanks were being installed, Mr Bachos excavated what had been the driveway from the reserve adjacent to the front boundary of Site 101. Mr Bachos, who appeared as a witness at the hearing, said he believed he was allowed to do this because of a conversation he had with a then officer of the Shire. When told that Shire approval was required for excavation, Mr Bachos applied for retrospective planning approval for the excavation of the sand.
The applicant also applied for prospective planning approval for the extension of the existing retaining wall a further 4 metres across the front boundary of Site 101 to near the eastern boundary of Site 101 and the construction of a 6.5 metre long retaining wall extending into the reserve perpendicular to the front boundary tapering from about 1.65 metres high at the front boundary to ground level near the road. Mr Bachos said he considered the retaining wall extension was required to retain soil around the septic tanks and to support a mature tree in the reserve in front of Site 102.
The Shire resolved to support both the retrospective application and the prospective application. Approval of the retrospective application was subject to the following conditions:
a)Vehicular access to Site 102 being restored to a trafficable standard suitable for a conventional 2 wheel drive light vehicle. Such access is to be designed to allow for vehicles to traverse the south eastern corner of Site 101 at an angle that allows for the septic tanks on Site 101 to not be driven over and be of a width that allows for safe reversing of vehicles to the satisfaction of the local government. (Technical Services); and
b)Any relocation of the existing fire hydrant adjacent to Sites 101 and 102 required to facilitate the access being undertaken at no cost to the local government and to the satisfaction of it. (Technical Services).
Approval of the construction of the retaining wall was subject to conditions which included the following:
a)The retaining wall being modified as necessary to accommodate the reinstatement of vehicular access to Site 102 as required by the retrospective planning approval granted for the excavation works that have been conducted on and abutting Site 101 to the satisfaction of the local government. (Planning and Sustainability);
…
d)Any bollarding of the septic tanks situated on Site 101 is to be limited to the placement of vertical posts of an appropriate height and dimension to be visible to vehicles and prevent damage by vehicles to the septic tanks. (Technical Services).

Issues

The respondent listed the following as an issue to be addressed:
Whether works (both prospective and retrospective) on the subject land need to make provision for the reinstatement of vehicular access to the adjoining land (Site 102).
The applicant recast the issue as follows:
Whether reinstatement of a vehicular access path, should in the circumstances, be a condition of development approval granted to the applicant.

Discussion

Counsel for the applicant made reference to various clauses within standard lease agreements signed by lessees of sites in Windy Harbour and the Shire as lessor. Clause 12.01 is headed 'Quiet Enjoyment' and states:
The Lessor covenants with the Lessee that if the Lessee pays the yearly rental in accordance with this Lease and observes and performs the terms covenants and conditions on its part herein contained the Lessor will allow the Lessee to peaceably hold and enjoy the Demised Premises during the Term and without interruption by the Lessor.
Counsel for the applicant, Mr McGlue, did not pursue a legal argument in respect of the implication of that clause under the agreement between the parties. He did however submit that it was arguable that this obligation on the lessor to provide 'quiet enjoyment' would extend to the lessor not imposing conditions of planning approval that interfere with that 'quiet enjoyment'. The applicant argued that the clause should also be read by implication and necessity to extend to the lessor making sure that it did everything that it reasonably could to prevent third parties from interfering with the applicant enjoying 'quiet enjoyment' at the demised premises, such as preventing the neighbour from using Site 101 for vehicle access.
Mr Algeri for the respondent, who is not a lawyer, made no submission on how 'quiet' enjoyment might be interpreted. Mr Algeri said the conditions imposed were appropriate having regard to the intent and objectives of the planning instruments for Windy Harbour.
The applicant said its primary submission was that the conditions under the review failed the 'three limbs' of the 'Newbury' test. These limbs can be restated from Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], in which McHugh J of the High Court of Australia endorsed the tests for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
... A condition attached to a grant of planning permission will not be valid therefore unless:
1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
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 applicant argued that, in respect to the first limb, it was not a proper planning purpose to impose conditions that gave the neighbour the right to drive vehicles across Site 101. The applicant said the power to impose conditions was not intended to permit local governments to confer benefits on or to protect the interests of individuals who were not a party to the planning application in isolation. Keeping the gravel driveway to Site 102 would serve to benefit only the tenant of Site 102 and no other resident of Windy Harbour. The applicant's submission was that the conditions would only have a proper planning purpose if they were to benefit the community as a whole.
The applicant conceded that clause 10.2.3 of the WHMP could be read to allow vehicles to drive across site boundaries, but critically, the proper reading was that this only applies to lots without road frontage and adjoining Site 102 had road frontage. It was pointed out that under the WHMP there was no statement to the effect that vehicles in general would be permitted to drive across any lot boundary. If this were to be allowed, it was argued, it should be expressly stated.
Clause 5.4.1 of the Design Codes was cited as the most direct provision regarding vehicular access at Windy Harbour. The applicant said the conditions would not result in car parking on and access to Site 102 remaining informal 'with minimal impact' on Site 101. The vehicle access required by the conditions would not therefore be consistent with the performance criteria listed at clause 5.4.1 of the Design Codes.
The applicant went on to refer to standard clause 4.06 of the lease agreement headed 'Right of Access' which states:
The lessee shall at all times permit the Lessor and lessees of other premises at Windy Harbour, and their guests and visitors, right of access to and across that part of the Demised Premises on which no building has been erected so as to permit access to any services or amenities provided by the Lessor for all persons desirous of availing themselves of those services and amenities.
The applicant argued that while there was no dispute that the neighbours could walk across Site 101 to make use of amenities and services provided by the lessor, this did not extend to vehicles because there was no direct reference in clause 4.06 of the lease agreement, or any other document of the planning framework, of vehicles of others having access over demised premises. The applicant said clause 4.06 of the lease agreement could not be read to provide a basis for a planning condition that reserved for a neighbour the personal amenity of onsite parking. The reference was to services and amenities provided for everybody, such as the playground and paths to the beach.
In the submission of the applicant the planning controls seek to avoid a scenario like the one where the tenant of Site 102 is permitted to drive across Site 101 to access their property in circumstances where Site 102 has alternative vehicle access, from the road at the front and at the rear from a track that runs behind Site 102 and its neighbours.
The respondent's submission in respect of limb 1 of the 'Newbury' test was that the conditions were required for planning purposes. The driveway historically was the main access point for Site 102 and was in place when the applicant entered into the lease of Site 101 three years ago. Mr Algeri restated that the main purpose of the WHMP was to manage the cultural heritage of this historic settlement. He argued that the unique character of Windy Harbour was one that provided leaseholders the right of access across other lease boundaries and the Design Codes provide standards to satisfy this objective.
The Tribunal would comment that when considering a development application it is necessary to have regard to orderly and proper planning and impact on local amenity, not, as stated, just as general notions of what constitutes good planning, but consistent with the planning framework, including the relevant objectives of the local planning scheme, structure plans and guidelines.
Not all planning conditions are required to be directed to the benefit of the community at large, but can also be directed to the impact of a development on its immediate neighbours. Relevant planning considerations can include such matters as changes to land levels, impact of retaining walls and vehicle access and parking. The proposed development includes excavation of sand from the reserve, construction of retaining walls and the removal of the previously existing shared vehicle access arrangements, such as are historically found in Windy Harbour. The Tribunal is satisfied that the conditions do in part reasonably relate to the changes precipitated by the proposed development and are appropriate.
The concern for the Tribunal in this matter is that the conditions also include an ulterior purpose. In the opinion of the Tribunal that ulterior purpose is to make formal and enforceable, as a condition of development approval, arrangements for vehicle access across Site 101to Site 102. This finding is discussed further below.
This leads to consideration of the relationship between the conditions imposed and the development applied for, which leads to consideration of the second limb of the 'Newbury' test, which is also referred to as the 'nexus' test.
The applicant said that any condition imposed should merely govern how the excavation takes place and how the retaining wall is built. Any perceived deficiencies in the quality of access to neighbouring Site 102 could be dealt with by way of the tenants improving their own driveway, not by the respondent imposing a condition of planning approval requiring a tenant of Site 101 to build a driveway for the neighbour.
In respect to the nexus test, Mr Algeri argued that the conditions fairly and reasonably relate to the development permitted. In the submission of the respondent, Windy Harbour is an A Class reserve and therefore all public land. Clause 10.2.1 of the WHMP is directed to ensuring the 'unusual privilege' of the tenants being allowed to lease portions of this reserve includes obligations to maintain access arrangements and, in the respondent's submission, this includes the historical arrangements where vehicles traverse a neighbour's site.
Mr Algeri provided evidence of other examples where vehicular access was allowed as a pragmatic solution to providing vehicle access to particular lots. It was acknowledged that in most instances this included sites that did not have vehicular access from the gravel road network, but it was argued that the principle was valid for historical access arrangements. The respondent said the track at the rear of Site 101 and Site 102 was suited to a four wheel drive and the other 'accesses' from the gravel road were sandy, on the unsafe inside of a bend in the road and did not extend right into Site 102. The respondent said that that the access the subject of the conditions was the only one suitable for a normal two-wheel drive vehicle. The impact of the development on the vehicle access provided a nexus between the condition imposed and the development
The Tribunal is concerned that the conditions of approval can be seen to make formal and enforceable a vehicle access arrangement that prior to this was casual and informal, consistent with the historical evolution of Windy Harbour. The Tribunal considers that planning conditions imposed on an approval of earth works, argued to be necessary for the protection of an approved septic tank, are not an appropriate mechanism for formally establishing an enforceable access way or a right of carriageway that would be a legal burden on the lessee of Site 101. The wording of the conditions as imposed lends itself to this interpretation and the Tribunal is of the opinion that there is not sufficient nexus between the development approved and the significance of the consequences to support the imposition of this element of the conditions.
The Tribunal is of the opinion that if the respondent wants there to be formal and enforceable legal obligation to provide access across Site 101 to Site 102, then this should be a term of the lease or the subject of the grant of an easement for the benefit of neighbouring Site 102 as part of a formal agreement that includes both lessees, not simply imposed as a condition of development approval as in this instance.
The Tribunal is of the view, however, that there is a nexus between development that involves the excavation of the reserve and the construction of the retaining wall and that part of the conditions of approval that address the impact of that development on the site and its neighbours. The Tribunal has formed the view that the development applied for should not have the consequence of allowing excavation that removes any possibly of consideration of the informal low impact access arrangements to Site 102 that existed prior to the applicant becoming lessee.
The question then arises as to whether the conditions imposed are reasonable, which is the third limb of the 'Newbury' test.
It was the applicant's submission that the conditions imposed were not reasonable. The applicant did not pursue the specific form of unreasonableness as expressed in Newbury, but did say that because Site 102 had other vehicle access points at both the front and rear, and there was no legal obligation for vehicle access to be provided across Site 101, then the conditions imposed were unnecessary and therefore unreasonable. The applicant referred to the conditions as being unreasonable because it was questionable in any event whether the septic tank, driveway, tree, retaining wall and access arrangements could all co‑exist.
Mr Travis Patterson, the licensed plumber who installed the septic tanks who was called as a witness by the applicant, said that on the information provided to him, he had installed the septic tanks as required by the approved planning application drawing and the Health Act 1911 (WA) (Health Act) approval. When examined, Mr Patterson said extending the retaining wall along the frontage of Site 101 would prevent the erosion of earth from around the septic tanks. The important consideration was to ensure the septic tanks were not exposed or damaged and there was no potential for effluent to escape.
The applicant interpreted this as it being necessary to excavate the driveway and construct the retaining wall and it was therefore unreasonable to impose conditions that prevented these developments.
The respondent argued that in respect of limb 3 of the 'Newbury' test the conditions in question were not unreasonable. Mr Algeri referred to further comment by Mr Patterson when questioned that if soil used for the driveway was reinstated adjacent to the front boundary it would also support the soil on Site 101 around the septic tanks. Mr Patterson's concern was that vehicles be kept away from the septic tanks.
The respondent said that what was required was the reinstatement of the driveway that had historically been in place and there would be little engineering difficulty in achieving this. Mr Algeri pointed out that the view had revealed that some unknown person had dumped dirt to effectively reinstate the slope of the driveway within the reserve and so it had been demonstrated that this could occur. The respondent's submission was that the septic tanks would not be impacted upon and so the conditions imposed were reasonable.
Consistent with its comments above, to the extent that the conditions endeavour to make formal the previously informal arrangements for access to Site 102, the Tribunal does not consider the conditions in that respect are reasonable.
The Tribunal has formed the view, however, that the conditions are not unreasonable in regard to the attempt to require there be in place sufficient slope up to the front boundaries of Site 101 and Site 102 where these sites abut. This is because there would remain the opportunity for informal cooperation between the lessees similar to that which historically provided for access to Site 102, having regard, of course, to the need now for there not to be any vehicle impact on the septic tanks.

Conclusion

The WHMP, including at clause 10.2.1 and clause 10.2.3, refers to the unusual situation of leases being created within an A Class reserve. Windy Harbour has a unique character because of the informal and cooperative way in which access arrangements have historically evolved. The access arrangements, specifically for pedestrians are referred to in the WHMP, Design Codes and standard lease.
There is evidence that, in addition to the pedestrian access arrangements specifically mentioned in the instruments, that there has evolved informal and low impact arrangements of leaseholders driving across the lease of another to gain vehicle access to their own lease. Vehicle access of this type is not expressly prohibited or permitted in the planning documents or the standard lease, but there is direct reference to the performance criteria for parking and access in clause 5.4.1 of the Design Codes.
The landform between the gravel road and the front boundaries of Site 101 and Site 102 near the common boundary between the two sites has previously been a slope up which both leaseholders could drive to the ground level of their respective leases. The Shire, however, has approved the installation of a septic tank near the south eastern corner of Site 101 and the approval conditions require that the effluent disposal area be protected from vehicular traffic.
The approval and installation of the septic tanks did not require the removal of soil from the reserve between the front boundary of Site 101 and the roadway, as occurred, but the applicant is seeking approval for the removal of that soil and the construction of a retaining wall both on the front boundary and in the reserve.
The Tribunal has concluded that the orderly and proper planning of Windy Harbour would best be served by conditions of planning approval sufficient to properly control the excavation in the reserve and the construction of the retaining wall. That is, allow excavation only to the extent that there remains sufficient earth to support the mature tree, to support the earth between the septic tank and the front boundary of Site 101 and to restore the slope so that vehicles can continue to be driven on the reserve up to the ground level at the front boundaries of Site 101 and Site 102. The conditions imposed do include elements to achieve this objective.
The Tribunal has further found, however, that the conditions imposed can also be viewed as including what might be considered an ulterior purpose. The planning conditions seek to make formal a vehicle access arrangement that was previously casual and informal, consistent with the history of such arrangements in Windy Harbour. The Tribunal does not consider planning conditions imposed on an approval of sand excavation is an acceptable mechanism for creating this formal burden on the lessee of Site 101. If the respondent wants there to be something more than an informal vehicle access arrangement such as is found in Windy Harbour, and arguably can be contemplated under the planning instruments and the lease, the Tribunal is of the view that that this should appropriately be negotiated as part of the lease so that any legal burden is part of the formal agreement between the lessor and the lessee.
The Tribunal has concluded that the conditions imposed should be worded to ensure there is in place the landform that would enable the potential for an informal and low impact vehicle access path to continue to be an option with cooperation between neighbours, such as has characterised the Windy Harbour settlement. It bears repeating, however, that any vehicle access to Site 102 must not have an impact on the septic tanks on Site 101 approved by the respondent.
There was a difference of opinion between the parties on whether it would still be possible for a vehicle to gain access to Site 102 without impact on either the septic tanks on one side and the existing tree on the other side (which would require the approval of the Shire), but this is a matter for the respective lessees, unless of course the Shire wants to explore steps under the lease to make any access arrangements formal.

Conditions

The Tribunal has concluded that condition (a) of the conditions imposed on the approval of the retrospective application for excavation of the reserve at the front of Site 101 should be amended to restrict the extent of excavation and to require the reinstatement of the slope of the reserve in front of Site 101 to the extent that there is earth supporting the tree, supporting the soil between the septic tanks and the front boundary and providing for vehicles to drive across the reserve to ground level at the front boundary of Site 101 and Site 102. The view revealed that some soil had already been placed on the reserve, but the effect of this is that the applicant would have less soil to import and it does not absolve the applicant of responsibility to reinstate the slope as described.
Mr Algeri said that from his viewing of Site 101 and consistent with advice from officers of the Shire, the fire hydrant at the front of Site 102 did not need to be relocated. Condition (b) of the retrospective approval was therefore not required and could be deleted.
Condition (a) of the conditions granting planning approval of the retaining wall on the front boundary of Site 101 and in the reserve in front of Site 101 needs to be amended to be consistent with condition (a) of the excavation approval.
Condition (d) of the retaining wall approval refers to bollards being placed to ensure that there was no traffic over the top or immediately adjacent to the septic tanks. While amended conditions would no longer compel the applicant to construct a driveway across Site 101, condition (d) should be amended so that if bollards are installed they are located so that they do not unnecessarily intrude into where vehicles might be able to travel. The applicant said the septic tanks were installed to satisfy the Shire's requirement that they be set back 1.2 metres from the side boundary. The Tribunal is of the view that the placement of bollards not more than 500 millimetres from the septic tanks or less than 700 millimetres from the side boundary would be sufficient to prevent any vehicle traffic having a direct impact on the septic tanks. Condition (d) can be re‑worded accordingly.

Orders

1.The application for review is allowed in part.
2.The approval of the retrospective application for excavation works in the reserve in front of Site 101 dated 24 October 2013 is amended by:
(i)Deleting condition (a) and replacing it with a new condition (a) as follows:
Restoration of the soil removed sufficient to support the existing tree, to support the soil located on Site 101 between the septic tanks and the front boundary and to reinstate the slope to the extent that a vehicle will be able to drive up and reverse down the slope between the finished ground level of Site 101 and Site 102 and the road and not drive on or close to the septic tanks, to the satisfaction of the local government (Technical Services).
(ii)Deleting condition (b).

3.The approval of the application for development of a retaining wall on the front boundary of Site 101 and in the reserve in front of Site 101, dated 24 October 2013, is amended by:
(i)Rewording condition (a) to read as follows:
The retaining wall being located and modified as necessary to accommodate the reinstatement of the slope between the finished ground level of Site 101 and Site 102 and the road as required by the retrospective planning approval granted for the excavation works to the satisfaction of the local government (Planning and Sustainability).

(ii)Rewording condition (d) as follows:
Any bollarding of the septic tanks situated on Site 101 is to be limited to the placement of vertical posts, of an appropriate height and dimension to be visible to vehicles, at a setback of not more than 500 millimetres from the septic tanks or less than 700 millimetres from the common boundary between Site 101 and Site 102, to the satisfaction of the local government (Technical Services).

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER