BENNETT and WESTERN AUSTRALIAN PLANNING COMMISSION - [2018] WASAT 32

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   BENNETT and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 32
CORAM:   MR P DE VILLIERS (MEMBER)
HEARD:   12 & 13 APRIL 2018
DELIVERED          :   2 MAY 2018
FILE NO/S:   DR 141 of 2017
BETWEEN:   JOHN BENNETT
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Two lot subdivision - Rural residential purposes - Bushfire Prone Area - State Planning Policy 3.7: Planning in Bushfire Prone Areas – Guidelines for Planning in Bushfire Prone Areas - Weight to be given to policy and guidelines - Designed Solution - Bushfire protection criteria - 'Shelter in Place' - NASH Standard - Vehicular access - Undesirable precedent - Cogent reasons to depart from policy - Application dismissed

Legislation:

Fire and Emergency Services Act (1998) (WA), s 18(P)
Planning and Development Act 2005 (WA), s 135, s 136, s 138(1), s 138(2), s 241, Pt 3
Shire of Boddington Local Planning Scheme No 2, cl 3.5, Appendix 6A
State Administrative Tribunal Act 2004 (WA), s 31

Result:

The application for review is dismissed and the decision of the respondent affirmed

Summary of Tribunal's decision:

The applicant sought approval for a two lot subdivision for rural residential purposes of Lot 55 Twin Bridges Place, Crossman. The subject site falls within a Bushfire Prone Area and approval was refused by the Western Australian Planning Commission because the bushfire management issues could not, in the respondent's view, be satisfactorily addressed.
The applicant provided a Designed Solution to replace the relevant Acceptable Solutions of the Bushfire Protection Criteria included in the Guidelines for Planning in Bushfire Prone Areas. The Designed Solution comprised a package of bushfire protection measures which included being able to safely 'shelter in your house' rather than leave a property when there was a likelihood that the egress route would be impacted by bushfire. A key component of the Designed Solution was the application of the NASH Standard for construction of buildings.
The Tribunal found that the Designed Solution did not meet the performance principle of Element 3: Vehicular Access of the Guidelines or the relevant policy objective of State Planning Policy 3.7: Planning in Bushfire Prone Areas.

These findings were based on evidence that access contingencies were constrained by the number of existing lots taking access from the road, the counter flows of residents and fire services during a bushfire event, and the potential for reduced visibility due to smoke in the context of a single access route 1.4 kilometres long which included both a crest and sharp left hand turn.

In addition the Tribunal found that a building constructed to the NASH standard would not guarantee that it would survive a bushfire event or provide a tenable environment for occupants present during a bushfire.
The Tribunal therefore found that the proposed subdivision did not warrant support and that there was, in addition, more than a mere chance or possibility that there may be later undistinguishable applications.
The Tribunal was not convinced that, in the circumstances of this particular case, there were cogent and legitimate reasons which would warrant a departure from the existing planning policies.
For these reasons the application for review was dismissed and the decision of the respondent affirmed.

Category: B

Representation:

Counsel:

Applicant	:	Mr Ian Brashaw
Respondent	:	Ms Sally Grebe

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433
Goldin and Anor v Minister for Transport (2002) 121 LGERA 101
Land Alliance Pty Ltd and the City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Marshall -v- Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490
Rigg and Western Australian Planning Commission [2017] WASAT 19
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Wattelup Road Development Co Pty Ltd -v- State Administrative Tribunal [2016] WASC 279

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 5 September 2016 Mr John Bennett (the applicant) sought approval for the subdivision of Lot 55 (No. 140) Twin Bridges Place, Crossman (the subject site) in the Shire of Boddington (Shire). The proposal involved subdividing Lot 55 into two freehold lots for rural residential purposes.
On 31 March 2017 the Western Australian Planning Commission (the respondent or Commission) refused the proposed subdivision for the following reasons:
1.The Commission is not satisfied that bushfire management issues can be satisfactorily addressed by the Proposed Subdivision, in accordance with the objectives and intent of State Planning Policy 3.7 Planning in Bushfire Prone Areas and the Guidelines for Planning in Bushfire Prone Areas as the proposal:
a.has a single access road greater than 200 metres in length through an area with a moderate bushfire hazard risk;
b.will place life and property at an unacceptable level of risk; and
c.is not supported by the State authority responsible for emergency services.
2.The Proposed Subdivision is inconsistent with a stated objective of State Planning Policy 3.4 Natural Hazards and Disasters which seeks to minimise the adverse impact natural disasters, including bushfires, on communities, the economy and environment.
3.Approval of the application may create an undesirable precedent.
On 27 April 2017 the applicant applied to the Tribunal for a review of the respondent's decision.
Following mediation and the provision of further information by the applicant, the respondent was invited by the Tribunal to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act2004 (WA).
On 19 October 2017 the respondent reconsidered its decision and resolved to affirm the decision for the following reasons:
1.The Commission is not satisfied that bushfire management issues can be satisfactorily addressed by the Proposed Subdivision, in accordance with the objectives and intent of State Planning Policy 3.7 Planning in Bushfire Prone Areas and the Guidelines for Planning in Bushfire Prone Areas, as the proposal:
a.has a single access road greater than 200 metres in length through an area with a moderate bushfire hazard risk;
b.the proposed emergency access way is greater than 600 metres in length through an area with a moderate bushfire hazard risk and it does not lead to an alternative access and egress;
c.incorrectly classifies the hazard levels;
d.will place life and property at an unacceptable level of risk; and
e.is not supported by the State authority responsible for emergency services.
2.The Proposed Subdivision is inconsistent with the stated objective of State Planning Policy 3.4 Natural Hazards and Disasters which seeks to minimise the adverse impact of natural disasters, including bushfires, on communities, the economy and environment.
3.Approval of the application may create an undesirable precedent.
It is the decision of the respondent made on 19 October 2017 that is the subject of this review.

Site and locality

The subject site falls within the Shire of Boddington. It is located approximately 10 kilometres east of the Boddington town site and approximately 5 kilometres west of Albany Highway. The subject site is located at the northern end of Twin Bridges Place and takes access from that road. Twin Bridges Place runs south and east from the subject site for a distance of approximately 1.4 kilometres where it provides access to Crossman Road. Crossman Road extends approximately 5 kilometres to the east where it joins Albany Highway and approximately 5.5 kilometres to the west towards the small rural township of Ranford.
The subject site has an area of 11.9581 hectares and falls towards the northern boundary adjacent to the Hotham River. The southeastern boundary is approximately 157 metres in length and the site widens towards the northern boundary.
Approximately one third of the subject site is vegetated between the Hotham River and the existing dwelling located reasonably centrally on the lot and approximately 346 metres from the frontage to Twin Bridges Place. While the site has windbreaks on its western, southern and eastern boundaries and along the central access road the remainder of the subject site is cleared pasture.
The subject site is bounded on the north by the Hotham River and by privately owned rural residential lots on both the eastern and western boundaries.
The subject site is within a 'bushfire prone area' as designated by the Fire and Emergency Services Commissioner and portions of the subject site are within the floodway and flood fringe of the Hotham River.

The proposed subdivision

The proposed subdivision seeks to create two rural residential lots. The proposed western lot (Lot A) has an area of 4.0051 hectares while the eastern lot (Lot B) has an area of 7.9530 hectares. The proposed boundary between the two lots is irregular in shape and allocates the majority of the northern boundary fronting the Hotham River to Lot B.
Lot A will have a frontage of 6 metres to Twin Bridges Place with access proposed via a 6 metre wide 18.56 metre long battleaxe leg. Lot B will have a frontage of 17.6 metres to Twin Bridges Place and will contain the existing double story dwelling, a water tank, two sheds, various fenced paddocks and a dam.

Planning framework

Planning and Development Act 2005

Section 135 of the Planning and Development Act 2005 (WA) (PD Act) requires that a person is not to subdivide any lot without the approval of the Commission. Section 138(1) of the PD Act states that the Commission may give its approval under s 135 or s 136 subject to conditions which are to be carried out before the approval becomes effective.
Section 138(2) requires that the Commission, prior to giving its approval under s 135 or s 136, is to have due regard, amongst other considerations, to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.

State Planning Policy 3.7: Planning in Bushfire Prone Areas and the Guidelines for Planning in Bushfire Prone Areas

The Commission has adopted State Planning Policy 3.7: Planning in Bushfire Prone Areas (SPP 3.7).
The intent of SPP 3.7 'is to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure' (cl 2: Policy Intent).
SPP 3.7 applies in designated bushfire prone areas designated by the Fire and Emergency Services Commissioner under s 18(P) of the Fire and Emergency Services Act 1998 (WA) (as amended) (cl 4: Application of this Policy).
SPP 3.7 is to be read in conjunction with:
•the Deemed Provisions contained in the Planning and Development (Local Planning Schemes) Amendment Regulations 2015, which form part of every local planning scheme;
•where relevant, any supplementary provisions of a scheme;
•the supporting Guidelines; and
•Australian Standard 3959: Construction of buildings in bushfire-prone areas.
The policy objectives of SPP 3.7 includes at cl 5 the following:
5.1Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
5.2Reduce vulnerability to bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process.
5.3Ensure that higher order strategic planning documents, strategic planning proposals, subdivision and development applications take into account bushfire protection requirements and include specified bushfire protection measures.
Clause 6.4(c) of SPP 3.7 requires that subdivisions applications are to be accompanied by 'an assessment against the bushfire protection criteria requirements contained within the Guidelines[.]' (Guidelines for Planning in Bushfire Prone Areas (Guidelines))
The Guidelines are designed to assist in the interpretation of SPP 3.7's objectives and policy measures (Guidelines cl 1.1).
Subdivision applications within designated bushfire prone areas are required to be assessed against the bushfire protection requirements contained within the Guidelines and Appendix 4 establishes bushfire protection criteria.
Appendix 4 establishes four performance-based elements location, siting and design, vehicular access and water. Clause 4.5.2 of the Guidelines states that 'For a proposal to be considered compliant with SPP 3.7 … each element … must be satisfied'.
The substantive issue in this review in regard to the criteria established in Appendix 4 of the Guidelines is the provision for vehicular access (Element 3).
The intent of Element 3 is 'to ensure that the vehicular access serving a subdivision/development is available and safe during a bushfire event'.
More specifically the following are relevant:
•A3.1: the requirement for two different vehicular access routes both of which connect to the public road network and provide safe access and egress to two different destinations; and
•A3.3: a maximum length of a cul-de-sac to be 200 metres.

Shire of Boddington Local Planning Scheme No 2

The subject land is zoned 'Rural Small Holding' under the provisions of the Shire of Boddington Local Planning Scheme No 2 (LPS 2 or Scheme).
Clause 3.5 of LPS 2, requires that subdivision in the Rural Small Holding zone shall be in accordance with the Zoning Table, the provisions outlined in Appendix 6A and any other relevant provisions of the Scheme.
Appendix 6A of LPS 2 establishes provisions for subdivision in 'Rural Small Holding' zones.

Issues

The key issues set out by the respondent in its substituted statement of issues facts and contentions are as follows:
a.Whether the Proposed Subdivision is contrary to State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7) and the Guidelines for Planning in Bushfire Prone Areas (Guidelines) in light of:
i.the location of the Subject Land within a designated bushfire prone area with a moderate to extreme bushfire risk;
ii.the absence of two different vehicular access routes which connect to the public road network to two different destinations; and
iii.the cul-de-sac which provides the sole access to the Subject Land which is 1.4 kilometres in length.
b.Whether the 'Designed Solution' proposed by the Applicant in the Bushfire Management Plan of 'leave early' or 'shelter in the house' meets the intent of Element 3 (vehicular access) of the Guidelines, and is a suitable substitute for the vehicle access requirements in Element 3 in the Guidelines.
c.Whether the proposal in the Applicant's Designed Solution for construction of a future dwelling on Proposed Lot A to Building Attack Level 40 is:
i.consistent with SPP 3.7 and the Guidelines; and
ii.legally enforceable in the planning and development process.
…
e.Whether approval of the Proposed Subdivision would create an undesirable precedent [if approved].
The parties agreed that the application is capable of being approved if bushfire issues associated with the proposed subdivision could be adequately and acceptably addressed.
The Tribunal will deal with each of the issues identified in turn.

Whether the proposed subdivision is contrary to SPP 3.7 and the Guidelines

The bushfire control experts, Mr Scott for the applicant and Mr Parker for the respondent agreed that continuous grassland fuels cover a significant portion of the landscape surrounding Twin Bridges Place. The Guidelines (Appendix 2 Table 3) designate grassland as having a moderate hazard level. It was not contested that Twin Bridges Place constituted the sole vehicular access/egress to the proposed lots and that the distance from the proposed lots along Twin Bridges Place to Crossman Road was 1.4 kilometres.
In addressing this issue the Tribunal will initially consider the weight to be given to the SPP 3.7 and the Guidelines. Having dealt with that matter the Tribunal will assess the proposed subdivisions against the relevant provisions of the Guidelines followed by an assessment against the broader policy objectives of SPP 3.7.

Weight to be given to the SPP 3.7 and the Guidelines

SPP 3.7 is a State planning policy adopted by the Commission in December 2015 under Pt 3 of the PD Act. As such it should be accorded significant weight.
State Planning Policy 1 - State Planning Framework (SPP 1) requires that the Commission must have due regard to the provisions which form part of the Framework in planning decisionmaking. It states (cl 3.1(e)) that each instrument listed shall be called a provision for the purposes of the policy; these include State Planning Policies, Regional and Subregional Strategies, Operational Policies, Position Statements and Guidelines (cl 3.1(f)).
The General Principles for Land Use Planning and Development set out in cl 5 of the SPP 1 include an Environment Principle that planning should contribute to a more sustainable future by:
…
iv.adopting a risk-management approach which aims to avoid or minimise environmental degradation and hazards.
…
Both SPP 3.7 and the associated Guidelines are explicitly recognised by the policy.
The policy framework establishes a hierarchy which in descending order goes from State Planning Policies, to Regional and Sub-regional Strategies, Operational Policies, Positions Statements and finally to Guidelines. The policy at cl 4.1 of SPP 1 clarifies that provisions higher in the hierarchy generally prevail over provisions lower in the hierarchy.
The question of the weight to be given to the Guidelines given their position in the hierarchy established by SPP 1 was put by the Tribunal to the parties.
The respondent submitted that as SPP 3.7 made explicit reference to the Guidelines and that no other State planning policy contained such a provision the Guidelines should be given a weight above that suggested by their position in the hierarchy.
The applicant in his statement of issues facts and contentions accepted that the proposed subdivision should meet the intent of the Guidelines.
Given the explicit reference to the Guidelines contained in SPP 3.7, and the fact that without the detail contained in the Guidelines it would be extremely difficult to achieve the objectives of SPP 3.7, that the Guidelines (introduced in 2015 and amended in August 2017 and December 2017) are a public policy adopted after considerable public discussion (Land Alliance Pty Ltd and the City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [51]), the Tribunal finds that the Guidelines should be given weight in the current proceedings.

Assessment against the Guidelines for Planning in Bushfire Prone Areas

The applicant has provided a Designed Solution to replace the relevant Acceptable Solutions of the bushfire protection criteria included in the Guidelines. The Designed Solution includes a package of bushfire protection measures which includes the following measures:
•Building location and separation;
•House (building) construction requirements;
•Attached structure construction requirements;
•Define APZ size and create a safe external area;
•APZ maintenance and landscaping;
•Gas and electricity supply;
•Water supply; and
•Occupants 'response to bushfire' plan.

The Design Solution is centred on occupants being able to safely 'shelter in your house' rather than leave a property when there is a likelihood that the egress route will be impacted by bushfire. A key component is the application of the National Association of Steelframed Housing standard (NASH Standard) for construction of buildings in bushfire areas which is applied in combination with the other proposed bushfire protection measures.
In terms of the bushfire protection criteria set out in Appendix 4 to the Guidelines the parties agreed the proposed subdivision complies with Element 1: Location, Element 2: Siting and Design and Element 4: Water. Thus it is Element 3: Vehicular Access which is at issue.
The parties agree that Twin Bridges Place provides the only vehicular access to Lot 55. It is also agreed that the proposed subdivision does not meet the acceptable solutions of Element 3.
The Bushfire Management Plan Supporting Documentation report (undated) states on page 4 that:
The designed solution presented by Bushfire Prone Planning in this document is centred on occupants being able to safely 'shelter in your house' rather than leave a property when there is a likelihood that the egress route/s will be impacted by bushfire'.
In addition Mr Scott, argues that aspects of Element 3 and the stated acceptable solutions are problematic for a range of reasons.
This evidence on its face suggests that the applicant is not seeking to satisfy the performance principle of intent of Element 3: Vehicular Access.
However, in the hearing the applicant in closing submitted 'due regard' had been given to the performance principle of Element 3: Vehicular Access and in giving evidence, Mr Scott asserted that Twin Bridges Place is safe. On this question considerable time was taken up during the hearing in examination and crossexamination of the bushfire control experts on the safety of Twin Bridges Place.
In this context the substantive issue is whether the performance principle for Element 3: Vehicular Access is met. This performance principle reads as follows:
…
The internal layout, design and construction of public and private vehicular access and egress in the subdivision/development allow emergency and other vehicles to move through it easily and safely at all times.
This principle needs, however, to be read in the context of the intent of Element 3 which reads as follows:
To ensure that the vehicular access serving a subdivision/development is available and safe during a bushfire event.
It was accepted by the parties that given a two lot subdivision the performance principle should be interpreted broadly in light of the intent; that is vehicular access 'serving a subdivision' rather than 'in the subdivision'.
This in turn requires an assessment of the safety of Twin Bridges Place. It was not contested that as a well-constructed public road Twin Bridges Place was safe in the absence of a bushfire event.
In regard to the context the bushfire control experts agreed that continuous grassland fuels cover a significant portion of the landscape surrounding Twin Bridges Place and that bushfires in these fuels spread quickly when weather and fuel conditions are suitable and can rapidly burn large areas. They further agreed that fire spread rates have a significant effect on the difficulty of fire containment, perhaps the largest effect, and therefore reduce the likely success of evacuation (Joint Conferral Statement 3(j)(k) and (l)).
In regard to addressing the intent of Element 3 the experts identified the following objective performance measures to demonstrate compliance:
•the number of access contingencies;
•the safety of access routes in the absence of a bushfire event (design and maintenance); and
•whether access routes are vulnerable to a bushfire event (Joint Conferral Statement 3 (g)).
In regard to the level of safe access the experts agreed it will depend upon the risks likely to be faced by the community on route to a nonbushfire prone location and by emergency responders providing assistance. These risks include:
•bushfire encroachment;
•reduced visibility due to smoke;
•trees and objects falling; and
•congestion (Joint Conferral Statement 3(q)).
The bushfire control fire experts, however, disagreed as to whether Twin Bridges Place was safe during a bushfire event.
Mr Parker raised a number of issues which led him to conclude that the road was not safe during a bushfire event. These included the amount of woody vegetation that has been established on either side of the road, the quite deep drainage channels on either side which in his view precluded driving off the road safely if there was an obstruction on the road, various fences of combustible material, quite long unmanaged grass adjacent to the road, and both a crest and a sharp left hand turn on the road itself.
In this context and given the length of the road Mr Parker expressed the view that he would not have confidence that Twin Bridges Place would provide safe access during a bushfire event.
Mr Scott, subject to two important caveats, generally accepted Mr Parker's characterisation of the road. These caveats were that, in his view, it would be possible to drive through the drainage ditches and that trees along the road were generally confined to a single line of trees bordering limited sections of the road.
While conceding that any vegetation next to a road is a risk, it was Mr Scott's view that given the speed with which grass fires travel usually trees would not catch fire and if they did it was likely that they would take some time to burn. In these circumstances it was most unlikely they would fall onto Twin Bridges Place.
In applying the performance measures and risks established in the joint witness statement of the bushfire control experts the Tribunal finds as follows for the reasons set out.

Number of access contingencies

In this instance, the number of access contingencies is constrained by a number of factors. The bushfire control experts agreed that bushfire in grasslands spread quickly and have a significant effect on the difficulty of fire containment and therefore reduce the likely success of evacuation (Joint Conferral Statement 3(j),(k) and (l).
The experts also agreed that fast spreading fires have higher perimeter growth rates and areas burned. This results in commensurately larger areas flaming at any one time, and as a result fast spreading fires require more time and resources to contain and control (Joint Conferral Statement 3(m). The time required to control such bushfire events would logically limit to some degree access contingencies.
The Tribunal therefore finds that the number of access contingencies is constrained.

Safety of access routes in the absence of a bushfire event

The Tribunal accepts the evidence of the bushfire control experts that Twin Bridges Place is safe in the absence of a bushfire event.

Whether access routes are vulnerable to a bushfire event/bushfire encroachment

The Tribunal accepts the evidence of the bushfire control experts that fire spread rates have a significant effect on the difficulty of fire containment and therefore reduce the likely success of evacuation making access routes vulnerable to a bushfire event.

Reduced visibility due to smoke

In crossexamination Mr Scott stated 'With grassland as the fire is approaching the smoke is quite thick' (ts 12 April 2018). While this is likely to clear reasonably rapidly given the speed with which the fire front moves the Tribunal finds there is in this instance the potential for reduced visibility due to smoke.

Trees and objects falling

In regard to trees and objects falling the Tribunal prefers the evidence of Mr Scott. There are a limited number of trees along the road, they are generally set reasonably well back from the surfaced area of the road, appear to be in good health and should they catch fire they would take some time to burn. They are therefore unlikely to fall into the road and if they did it would be likely to be well after the fire front had gone through.

Congestion

In addressing the issue of potential congestion on Twin Bridges Place during a bushfire event Mr Scott argued that vehicles do not bottleneck. In addition it was his evidence that the maximum travel time on the road would be 72 seconds. This equates to a travel speed of approximately 50 kilometres per hour. He did concede that residents may be seeking to leave their properties, fire services would be utilising Twin Bridges Place to access adjoining paddocks to fight the bushfire and some residents may be going back in to fetch their horses.
Currently 14 lots (beyond 200 metres from Crossman Road) take access from Twin Bridges Place. Given access contingencies are constrained, rapid fire spread rates, the number of existing lots taking access from the road and the counter flows of residents and fire services the Tribunal questions the evidence of Mr Scott and finds that during a possible bushfire event there is potential for congestion on Twin Bridges Place and should this occur it could compromise the safety of access.
In addition the Tribunal has concluded that the potential for reduced visibility due to smoke in the context of an access route 1.4 kilometres long which includes both a crest and sharp left hand turn and which could be subject to congestion means that the proposed subdivision does not meet the performance principle of the Guidelines in Element 3: Vehicular Access.
In addition Mr Parker argued that if you do increase the population on that road you will increase the likelihood of congestion and he was of the view that this was a significant consideration.
Peter Wright, planning expert for the respondent, in his witness statement (WS) at (para 63) 'identified 8 other lots (lots 51, 52, 56 59, 71 and 72) which access Twin Bridges Place and which, similar to the subject land, are zoned Rural Small Holding and meet the minimum lot size requirements for subdivision under LPS 2'. He formed the view '… that the proposed subdivision could set a precedent for subdivision of these other 8 lots[.]' (WS para 64) It was agreed in the hearing by the experts that these lots, and the subject site, could potentially involve the creation of a further 13 lots (omitting Lot 55) taking access from Twin Bridges Place. Importantly this excludes lots within 200 metres from the intersection of Crossman Road.
There are in addition a further five lots taking access from Twin Bridges Place which do not meet minimum lot size requirements for subdivision under LPS 2.
Therefore such additional subdivision could potentially result in a total of 27 lots taking access from Twin Bridges Place.
In addition it was accepted that each of the potential 13 additional lots, if created, and the further five existing lots, would have the potential for an ancillary dwelling. However, the experts agreed that in this locality it was unlikely that many property owners would exercise the right to develop ancillary dwellings.
In this context, the capacity of the road to provide safe access for emergency and other vehicles would be further compromised should additional subdivisions occur on Twin Bridges Place.

SPP 3.7

The provisions of s 241 of the PD Act require that the Tribunal in determining an application is to have due regard to any State planning policy which may affect the subject matter of the application. In this context policy objective 5.1 of SPP 3.7 which reads as follows is relevant:
Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
The Bushfire Management Plan Supporting Documentation report (undated) page 4 notes that:
A key component of the designed solution document is the application of the NASH Standard for construction of buildings in bushfire areas which is applied in combination with other bushfire protection methods. This provides a significantly improved outcome compared to the only other deemed to satisfy construction solution presented as AS 3959.
It should be recognised that the Designed Solution put forward by the applicant includes a wide-ranging package of bushfire protection measures. While the respondent, in the hearing, raised concerns with the occupant's 'Response to Bushfire' plan, the issue of the NASH Standard construction was the substantive matter in contest between the parties.
The foreword to the NASH Standard Steel Framed Construction in Bushfire Areas 2014 document, which was in evidence, includes the following statements:
… This standard sets out acceptable construction requirements for residential and low-rise buildings in bushfire prone areas to reduce the risk of ignition from bushfire attack involving embers, radiant heat and direct flame impingement using non-combustible building materials.
…
Buildings constructed in accordance with this Standard are intended to provide a protective sheltering envelope during passage of the bushfire flame front. They do not constitute 'last resort' private bushfire shelters as defined in the NCC. The Standard is based on achieving ignition resistance through non-combustible construction using conventional building materials and a level of redundancy to provide a high level of performance in extreme bushfire events and an increased probability that unattended buildings will survive such events. …
(Tribunal emphasis )
Appendix A Development of Bushfire Resistant Structures in the same document provides the following information on the testing involved in developing the NASH Standard.
The construction provisions specified in this Standard are based on testing and the application of fire engineering principles. An original test undertaken by CSIRO at their outdoor testing facility provided information relating to the performance of elements associated with a house constructed using non-combustible framing and materials when subjected to a simulated Flame Zone exposure. From this testing, it was clear that the resistance of the walls needed to be upgraded for such exposure …
(Tribunal emphasis)
In his witness statement Mr Scott argues (para 59) such buildings have 'a high likelihood of surviving the passage of a bushfire front and any consequential local fire' (ts 12 April 2018).
While research has demonstrated improved survival outcomes for buildings constructed to AS3959-2009 standards (Leonard et al 2016 Wye Valley/Separation Creek Post-bushfire Building Survey Findings) there is no evidence available to the Tribunal on the survival outcomes of buildings constructed to the NASH Standard.
In addressing this question in their Joint Conferral Statement the bushfire control experts agreed that a building constructed to the standard does not guarantee that it would survive a bushfire event and that the NASH Standards do not claim to provide a tenable environment for occupants present during a bushfire (Joint Conferral Statement 3(ff)).
On the basis of this evidence the Tribunal is not convinced that the proposed 'sheltering in place' would avoid any increase in the threat of bushfire to people or ensure the preservation of life. The Tribunal therefore finds that the proposed performance principle-based solution does not meet Policy objective 5.1 of SPP 3.7.

Whether the 'Designed Solution' meets the intent of Element 3 of the Guidelines

The evidence of the bushfire control experts is that a building constructed to the NASH Standard does not guarantee that it would survive a bushfire event and that the NASH Standard does not claim to provide a tenable environment for occupants present during a bushfire. In accepting this evidence the question of whether the Designed Solution meets the intent of Element 3 of the Guidelines does not arise.

Whether the construction of a future dwelling on to Building Attack Level 40 is consistent with SPP 3.7 and the Guidelines and is legally enforceable in the planning and development process

The parties agree that construction to the NASH Standard would meet Element 2 of the Guidelines.
At the hearing the Tribunal received extensive evidence from both parties on the question of whether a condition requiring construction to a NASH Standard could be legally enforced. Given the findings in this review this is not a matter which the Tribunal is required to address.

Whether approval would create an undesirable precedent

The Tribunal, in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [74], adopted the following criteria from Goldin and Anor v Minister for Transport (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment. These are:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications."
The Tribunal considered that these criteria are consistent with Western Australian authority.
Given the findings set out above the Tribunal finds that the proposed subdivision 'is not in itself unobjectionable'; that is the proposed subdivision is problematic. Moreover, the evidence of the expert planners clearly establishes that there is more than a mere chance or possibility that there may be later undistinguishable applications. For these reasons undesirable precedent is a relevant consideration to be weighed in seeking to arrive at the correct and preferable decision.

Are there cogent and legitimate reasons to consider departing from the policy

In light of the evidence and findings set out above the substantive question for the Tribunal is to assess whether in the circumstances of this particular proposed subdivision there are cogent and legitimate reasons to consider departing from the policy and supporting Guidelines.
The applicant sought to place considerable weight on correspondence from the Shire of Boddington supporting the proposed subdivision. The Shire argued the Commission has approved similar applications in Twin Bridges Place in recent years, consideration should be given to applying the performance principle of the Guidelines, the subject site is close to the Crossman Fire Shed and the risk of Twin Bridges Place being cut off is considered extremely low.
In addition while the Shire accepts that adopting a precautionary approach to bushfire risk is a sound planning principle there are concerns with the implications of the Commission's refusal including:
•the potential for subdivision;
•affordability considerations;
•the planned growth of Boddington as a sub-regional centre;
•the potential loss in land values; and
•the Shire's finances such as reduced rates.
The application for subdivision would have been referred to the Shire for comment prior to the Commission's decision and the issues raised, to the degree that they were relevant planning considerations, would have been assessed by the technical officers of the Department of Planning Lands and Heritage in the original determination.
The task of the Tribunal on review is however to assess the application against the relevant planning provisions in light of the evidence before it; evidence that was not available to the Shire in providing its correspondence to the applicant.
The applicant also raised Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490. (Blue Sky)
Blue Sky dealt with the statutory interpretation of statutes drawn up by parliamentary council. One cannot assume, and it is in fact highly unlikely, that the drafters of the policy and Guidelines applied the drafting conventions used by Parliamentary Council.
Having said that the Tribunal accepts, and has in this review applied, the more general principle that the interpretation of the detailed provisions of planning policy and Guidelines need to be considered in the context of other parts of the policy and Guidelines within which they are contained.

The witness statement of Mr Ian Brashaw (para 96) argues '… the Guidance is in a state of continuous review and development. I am of the view, the Review by the Tribunal is part of that process of continuous improvement'.
The witness statement of Mr Scott (paras 64 and 52) argues '… there is an urgent requirement for revision and modification of components of the Bushfire Protection Criteria …' and ' … there is a requirement for new planning precedents to be set … and have them incorporated into planning and building in this State'.
The thrust of the applicant's arguments seem to be that the Tribunal has a legitimate role, and case precedent support, to effectively 'improve' or 'rewrite' (depending on your view) State bushfire policy in determining individual reviews before it.
These arguments misconceive the Tribunal's role in a review. The substantive question for the Tribunal is whether, in the particular circumstances of the matter before it and in seeking to produce the correct and preferable decision, there are cogent and legitimate reasons to depart from the existing adopted policy.
In the decision of Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002]122LGERA433 at[24], Justice Barker held:
… The existence of … a 'policy' [cannot] replace the discretion of the [decision-maker] in the sense that it is to be inflexibly applied regardless of the merits of the particular case … . [However], the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application[.]
More recently the Tribunal found in Rigg and Western Australian Planning Commission [2017] WASAT 19 at [28] and [49] as follows:
28Consideration of SPP 3.7 is to be done in conjunction with the respondent's Guidelines for Planning in Bushfire Prone Areas published in December 2015 (Bushfire Guidelines) and the Deemed Provisions.
49Determination of this issue and others must be done in accordance with the planning framework mindful that policy within that framework provides guidance to the exercise of the Tribunal's discretion and the Tribunal is not to apply policy inflexibly: see Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24]; Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 529 530 and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [51] [53]
In the decision of Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1, the Tribunal enunciated the test to be applied to determine the weight to be given to any particular policy as follows:
•whether it is based on sound town planning principles;
•whether it is a public, rather than a secret, policy;
•whether it is a public policy conceived after considerable public discussion;
•the length of time that a policy has been in operation; and
•whether it has been continuously applied.
SPP 3.7 is a State planning policy adopted by the Commission in December 2015 under Pt 3 of the PD Act.
Clause 6.11 of SPP 3.7 addresses the precautionary principle as follows:
Where a landowner/proponent has not satisfactorily demonstrated that the relevant policy measures have been addressed, responsible decisionmakers should apply the precautionary principle to all strategic planning proposals, subdivision and development applications in designated bushfire prone areas. For example, if a landowner/proponent cannot satisfy the performance principles of the relevant policy measures through either the application of the acceptable solutions outlined in the Guidelines, or through the alternative solutions endorsed by the WAPC and State authority/relevant authority responsible for emergency services, the application may not be approved.
In addition SPP 3.7 contains the following note on the precautionary principle:
In this context, 'should' is to be read as a strong recommendation. In relation to strategic planning proposals, subdivisions and development applications, this policy also recognises that each site is to be assessed on merit and that the determination of an application may involve the use of discretion in planning decisionmaking to support innovative bushfire risk management solutions.
In Wattelup Road Development Co Pty Ltd -v- State Administrative Tribunal [2016]WASC279 the Supreme Court found at[59]:
Before turning to the 2014 Report, it should be noted that [71] of the 2011 Decision (set out above at [13]), the Tribunal's conclusion that the precautionary principle warranted refusal was couched in terms of '[b]alancing the planning considerations' and considering the matter 'in the circumstances of this case'. That approach reflects the correct application of the principle.
The applicant submitted that it was appropriate to apply the precautionary principle where impacts of a proposal are unknown or uncertain. However in the case of the proposed subdivision the applicant submitted that impacts are known to a reasonable level and a determination needs to be seen in proportion to the risk. On this basis the applicant argued it would not be relevant or appropriate to apply the precautionary principle.
However, the findings set out above highlight a number of uncertainties with both the potential impacts of a bushfire event and with the performance of the proposed NASH Standard construction. While the level of uncertainty would not elevate the precautionary principle to a determinative factor in this review it is one of the factors in balancing the planning considerations relevant to an outcome.
While the Tribunal does not lightly depart from the explicit provisions of a State planning policy it is required to give proper, genuine and realistic consideration to the merits of the case (Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196).
The principles for such a consideration were set out in Marshall -v- Metropolitan Redevelopment Authority [2015] WASC 226 at [180] and [182] as follows:
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
…
182… If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle … '
(Emphasis added)
Balancing all of the planning considerations in this review and on the basis of the evidence before it and the findings set out above the Tribunal is not convinced that, in the circumstances of this particular case, there are cogent and legitimate reasons which would warrant a departure from SPP 3.7 and the supporting Guidelines.

Conclusions

The evidence in this review led the Tribunal to find that the proposed subdivision does not meet the relevant provisions of SPP 3.7: planning in bushfire prone areas and the supporting Guidelines.
The substantive question for the Tribunal is therefore whether, in the particular circumstances of the matter before it and in seeking to produce the correct and preferable decision, there are cogent and legitimate reasons to depart from the existing adopted policy.
The Tribunal is not convinced that, in the circumstances of this particular case, there are cogent and legitimate reasons which would warrant a departure from the existing planning policies.
For these reasons the application for review is therefore dismissed and the decision of the respondent affirmed.

Orders

For the reasons set out above:
1.The application for review is dismissed.
2.The decision of the respondent on 31 March 2017 to refuse the application for subdivision of Lot 55 (No 140) Twin Bridges Place, Crossman is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P DE VILLIERS, MEMBER
2 MAY 2018