| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BLISSETT and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 186 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 NOVEMBER 2011 FILE NO/S : DR 156 of 2011 BETWEEN : MALCOLM BLISSETT Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning Development Refusal Alienation of foreshore land and waterway Undesirable precedent Revetment Safe and comfortable access to and from mainland Broader public interest Non-conforming areas Legislation: Peel Region Scheme, cl 5, cl 6, cl 10(a), cl 33, cl 34
Planning and Development Act 2005 (WA), s 251(1)
(Page 2)
Result: The application for review is dismissed
The decision under review is affirmed Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr A O'Brien
Solicitors:
Applicant : Self-represented
Respondent : N/A
Case(s) referred to in decision(s):
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Plesa Pty Ltd and Western Australian Planning Commission [2010] WASAT 58
Riviera Properties Projects PL v East Gippsland SC [2004] VCAT 2605
The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303
Weedon and Shire of Murray [2006] WASAT 128
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review by Mr Malcolm Blissett of the refusal by the Western Australian Planning Commission to grant planning approval under the Peel Region Scheme for the construction of a jetty on public foreshore land on the south (mainland) side of the Minjoogup branch of the Murray River. 2 The applicant has a property on the north (island) side of the river and owns a jetty on public foreshore land from which he negotiates access to the mainland by pontoon. Mr Blissett, in effect, sought approval for a second jetty. 3 The reasons for refusal were that the proposed jetty would conflict with public policy specifically, the alienation of the foreshore and waterway, a reduced capacity for public access and use, degradation of the landscape and would set an undesirable precedent. The applicant sought approval in order to negotiate safe and comfortable access for his family and himself between the island and the mainland, and a determination by the State Administrative Tribunal on the merits of the case. 4 The Tribunal examined the relevant statutory and policy documents and the issues raised by the parties, including that of precedent. 5 The principal issue before the Tribunal was that of the conflicting need for public and private access to the river by way of jetties and other facilities against the need to protect the river foreshore, its vegetation and natural habitat. 6 The Tribunal recognised that the overriding intent of the statutory and policy documents is to protect the natural environment, and to ensure that the number of boating facilities on the waterway are controlled, and that the alienation of the waterway and foreshore is minimised. 7 Although the Tribunal recognised the argument of the applicant for safe and comfortable access to and from the mainland by way of a new private jetty, it was not of sufficient substance to outweigh the broader public interest and that an approval could give rise to other like applications to the detriment of a narrow section of the river. 8 The application for review was therefore dismissed. (Page 4)
Introduction 9 This matter involves an application by Mr Malcolm Blissett (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of a refusal by the Western Australian Planning Commission (Commission or respondent) to grant planning approval for the construction of a jetty on the Murray River foreshore obliquely opposite his property at Lot 79 Minjugup Terrace on Yunderup Island. The proposed development, costing some $7,000, would fall within the Shire of Murray (Shire).
Subject land and locality 10 The waterway in which the proposed jetty would be constructed is part of the Murray River delta. The Murray River (and its Minjoogup branch) is owned by the Crown and falls within the Waterways reservation under the Peel Region Scheme (PRS). 11 The proposed jetty abuts a foreshore area which is a road reserve. The area has never been dedicated for that purpose. 12 The foreshore area, which is positioned between the rear boundary of residential lots (fronting Lever Way and Kruger Loop) and the river, is approximately 40 55 metres wide and falls within the 'Regional Open Space' (ROS) reservation under the PRS. 13 The predominant character of the locality in which the proposed jetty would be built (the Minjoogup foreshore) is that of a partly cleared river foreshore with low level indigenous trees with patches of undergrowth. There is fringing remnant vegetation along the river bank. 14 The proposed jetty would be accessed by means of an existing narrow limestone track constructed and maintained by the Shire to facilitate access to some five revetments along the foreshore area. These revetments, which are small clearings along the water's edge, have been established for the berthing and mooring of boats and the parking of cars, and provide mainland access for the owners of Yunderup Island lots. 15 It is intended that the proposed jetty would be constructed at one of these revetments, some 80 metres from the applicant's existing foreshore jetty on the opposite (island) side of the river. (Page 5)
Background 16 The application for planning approval, dated 7 January 2011, was received by the respondent on 18 January 2011. The application for a 6 metre by 1.5 metre jetty was referred to relevant agencies for comment. 17 In its undated response the Shire advised: … that it does not support the proposal as the jetty does not comply with Pt 4.1 of the Peel Inlet Advisory Council's Boating Facilities, Jetties and Structures WS 3.4 Position Statement. 18 The Department of Water (DoW) provided a similar response to the Shire and advised on 17 February 2011 that it was unable to support the application. The Department of Transport advised on 7 February 2011 that it had no objection to the proposal subject to conditions. 19 On 21 March 2011 the respondent advised that it had refused the application for the following reasons: 20 On 11 May 2011 the applicant lodged an application for review of the respondent's decision with the Tribunal.
Legislative and policy framework
Peel Region Scheme 21 Clause 5 of the PRS states: (Page 6)
22 The aims of the PRS in cl 6 include: … (c) protect as regional open space the region's coastal foreshores, the foreshores of the Serpentine, Murray and Harvey Rivers and the Peel Inlet and Harvey Estuary, as well as other areas of regional conservation significance and areas for regional recreational facilities[.] … 23 Clause 10(a) of the PRS states: 24 Consultation with other authorities is covered under cl 33 of the PRS: (1) The Commission may consult on a proposed development with any public authority it considers appropriate. … 25 Clause 34 of the PRS covers matters to be considered by the Commission: (Page 7)
(y) the potential loss of any community service or benefit resulting from the planning approval; (z) any relevant submissions received on the application; (za) any recommendations received from a local government under clause 30(3); … (zc) any other planning consideration the Commission considers relevant.
Peel Inlet Advisory Council Position Statement boating facilities, jetties and structures WS 3.4 (WS 3.4) 26 The purpose of WS 3.4 in cl 1 is: … to ensure that the potential impacts associated with the location and construction of structures such as jetties … are minimised. 27 The objective of WS 3.4 in cl 1 is: … to ensure that waterways environmental, aesthetic and social impacts associated with boating structures potential impacts are minimised, that the number of structures is controlled and that the alienation of public waterways and foreshore areas is minimised. 28 Under cl 2 (Cumulative Impacts) of WS 3.4 it states: The cumulative impacts of such structures on or adjacent to waterways, including public access and possible alienation of the foreshore from public use, erosion, loss of foreshore vegetation, obstructions to floodways or river flows, vessel navigation and visual obstruction will be considered when assessing such proposals. 29 Also, under cl 2 (Beneficial Use of Waterways) of WS 3.4 it states: The Council's aim is to ensure that the proliferation of any such structures in concentrated areas to the detriment of other values and or uses is minimised. Individual applications will be assessed on their merits, however local and regional planning for the overall benefit of the waterways will also be considered. 30 Under cl 4.1 (Private Structures and Jetties (Riverine)) of WS 3.4 the question of proposals adjacent to public land is addressed: [Peel Inlet Advisory Council] will not recommend approval of applications for new private jetties, boat ramps, slipways or structures abutting or fronting public land. [Peel Inlet Advisory Council] will not recommend (Page 8)
approval for applications to rebuild unlicensed old jetties adjacent to public land that may have fallen into disrepair. 31 Again, under cl 4.1 of WS 3.4, three 'Non-conforming Areas' are listed where jetties may be recommended for approval. These are: 32 The provisions under cl 4.1 relating to the Murray River Delta Islands state: As access to lots on these islands is via the river and foreshore reserves, [the DoW] will consider recommending approval of applications for jetty licenses [sic] (excluding boat ramps and slipways) in these locations. Preference will be given to applications for shared jetties, with the preferred design being for 'land-backed' types due to the narrow river channels.
Planning issues 33 The principal planning issues are: Assessment of the proposal
The matter of conservation versus development 34 The balance between the protection of river foreshores for conservation purposes and their development for jetties and other boating facilities (boat ramps, boat sheds, landbacked berths and slipping facilities) in this locality is a changing relationship. That is to say that whereas in the 1920s the balance was in favour of conservation with limited foreshore development, the situation today is very different due to nearby residential development and the pressure from residents and the general public for access to and from the waterways. 35 In order to bring some certainty to the approval process, three socalled 'nonconforming' areas have been nominated in WS 3.4 where (Page 9)
jetties may be recommended for approval by the Peel Inlet Advisory Council (PIAC) at Reserve 40109 (Rodoreda Crescent), Murray River Delta Islands and Willow Gardens Lot 1 17 Reserve 38842 Mooring Area. 36 However, the situation is complicated by jetties and mooring facilities located outside these three 'non-conforming' areas in the following forms: • privately owned jetties serving mainland properties; • privately owned 'coinciding' mainland jetties serving Culeenup and Yunderup Islands; • a nearby public jetty and boat ramp at the end of Young Road, South Yunderup, as well as a public jetty at the western end of Culeenup Road, North Yunderup. Also, a floating jetty has been installed at the end of Strain Glen; and • five revetment areas along the Minjoogup foreshore. 37 In its statement of issues, facts and contentions (SIFC), dated 1 July 2011, the respondent advises at para 15: There are ten privately owned jetties abutting the Minjoogup foreshore. Of these: • one is a coinciding mainland jetty serving a lot on Culeenup Island; • two are coinciding mainland jetties serving properties on Yunderup Island; • five serve mainland properties abutting Rivergum Esplanade; and • two are yet to be confirmed. 38 In the applicant's answer to the respondent's SIFC received by the Tribunal on 5 August 2011 he advises: … The foreshore opposite Yunderup Island has been used for jetty access historically (since 1972) and three licensed jetties abutting it are owned by the owners of Lots 72, 73 and 74 Yunderup Island. 39 This statement was supported by photographic evidence. 39 In its SIFC the respondent advises at para 16: (Page 10)
All of the existing private jetties are historical. Since 1976, the construction of new jetties has not been supported unless consistent with WS 3.4. 40 Although the applicant takes some issue with the above statement, what is clear is that the response from DoW, under whose aegis the PIAC falls, did not support the current proposal for the reason outlined in cl 4.1 of WS 3.4. 41 On this point the Tribunal notes an apparent inconsistency between the wording in cl 4.1 at [30] above where the Council will not recommend approval for new private jetties on public land, and the provisions of cl 2 of WS 3.4 at [29] above where 'individual applications will be assessed on their merits'. 42 However, although the Tribunal will have regard to the overall intent of WS 3.4 it is not bound by its provisions. It will determine the matter on the merits of the case. 43 In that respect it is clear to the Tribunal that the overall intent of the PRS and WS 3.4 is to protect the natural environment and to ensure that the number of boating facilities on the waterways is strictly controlled and that the alienation of public waterways and foreshore areas is minimised.
The matter of the Murray River Delta Islands 44 As explained in [31] above the Murray River Delta Islands comprise one of three 'nonconforming' areas where jetties may be recommended for approval. However, it is the wording of cl 4.1 of WS 3.4 in relation to the Islands that is at issue between the parties. 45 In the respondent's written submission dated 22 August 2011, at para 25 it is argued: WS 3.4 specifically identifies the nonconforming area as the 'Murray River Delta Islands', which does not include the mainland foreshore of the Murray River. The description of the nonconforming location refers to access to lots on these islands being via the river and foreshore reserve. The ordinary meaning is a description of how one may get on to the island lots. It does not refer to access to the mainland from the delta islands, or elsewhere. The foreshore referred to in WS 3.4, in regard to that nonconforming area, is the land on the various islands separating the freehold lots from the river. The foreshore where the proposed jetty would be located is part of the 'mainland' and is not located on an island within the delta. The respondent submits the proposed jetty would not be located within one of the nonconforming areas identified in WS 3.4. (Page 11)
46 In the applicant's answer to the respondent's written submission dated 5 September 2011, he argues: 47 In the view of the Tribunal the argument of the respondent is both persuasive and correct. The use of the plural form (foreshores) refers to the foreshore on several individual islands and does not extend to the mainland. If cl 4.1 of WS 3.4 was specific to Yunderup Island only, then the use of the plural form (foreshores) could well be argued to include the mainland. 48 However, as explained in [42] above, the Tribunal is not bound by the provisions of WS 3.4 but will have regard to them. What the Tribunal has before it is a development proposal for a jetty on the mainland and it will deal with the matter on the merits of the case.
The matter of undesirable precedent 49 In Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls), the concept of adverse planning precedent was discussed. The Tribunal advised that for precedent to be a relevant planning consideration, each of the following two tests must be satisfied: 50 In the respondent's SIFC at paras 30 and 32 it is argued: (Page 12)
(b) interference with public access and use of the foreshore area and river; (c) negative impact upon visual amenity of the foreshore area and river; and (d) loss of foreshore vegetation. … Individually and collectively, jetties (together with associated watercraft and fixtures) encompass an area of the waterway that tends to be perceived as private space. Foreshore space used for long intervals of car parking in association with such jetties compounds the perception of exclusion for members of the public. The actual and perceived claim upon these spaces produces a sense of intrusion and thereby reduces the comfort, amenity and perceived availability of the foreshore and water space for members of the public. 51 In his response the applicant argues: (a) residents on the islands have had uninterrupted access to the foreshore and river since 1927 when the islands were developed; (b) the issue of a jetty licence does not prevent the public having access to an area where they would have access prior to the issue of a licence, for example in a foreshore reserve area; (c) there are five allocated areas (revetments) for the islanders to access the island from the reserve. This takes up a very small proportion of the public reserve area along the river; (d) there will be no clearing of vegetation as the proposed jetty is to be constructed on a revetment; and (e) the applicant has moored a vessel and parked in the same area for the last ten (10) years. A proposed finger jetty will not aggravate or interfere with the foreshore but will make for safe travel. 52 In the respondent's written submission it is argued at paras 29 and 30 that: (Page 13)
53 In order to give some context to the respondent's submission, Mr Aiden O'Brien, Senior Planning Officer, Peel Region, at the Department of Planning advises in his witness statement of 22 August 2011: • the Minjoogup foreshore has a length of some 570 metres; • if 68 to 70 jetties with 1.5 m wide decking (as proposed in this application) were constructed side by side on the mainland foreshore by landowners on Yunderup Island who currently do not have a jetty on the mainland, the structures would take up some 102 105 metres of foreshore; [and] • if adequate manoeuvring space between jetties was taken into account for a vessel 6 metres long with a 2.6 m beam, the additional jetties and vessels would occupy 306 315 metres of the foreshore, with no allowance made for existing jetties. 54 Although the Tribunal places limited weight on the hypothetical scenario advanced by Mr O'Brien, it does, nevertheless, place a worst case scenario into perspective. 55 The Tribunal is further advised in Weedon and Shire of Murray [2006] WASAT 128 (Weedon), The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 (Haigh) and Plesa Pty Ltd and Western Australian Planning Commission [2010] WASAT 58 (Plesa). 56 In Weedon the Tribunal refused an application to construct a new private jetty in the Murray River, abutting the ROS reservation, opposite Lot 72 Banksia Terrace, South Yunderup. In its discussion on the case the Tribunal advised, at [78]: First, the nature of the proposed facility is essentially a private facility to be constructed mainly in a public reserve, a reserve that has several public objectives (including conservation, access and recreation). On its face, the jetty would have limited social benefits beyond its use by the applicant. There is no doubt that it would benefit the applicant [who is disabled], but the various public purposes of the reserve would not be relevantly advanced. Necessarily, the construction of a private jetty reduces public access to the river, whether or not there is any alienation of the land … 57 In Haigh the Tribunal refused an application for retrospective approval for two mooring poles in the Murray River approximately six metres from the shore opposite Lot 170 Foreshore Cove, South Yunderup. A small gangway had been assembled between the (Page 14)
foreshore and at least one boat moored to the poles, thus appearing as a compact jettystyle structure. 58 Again, in Haigh the Tribunal advised: 81 Much of the applicants' supporting evidence in effect deals with the personal circumstances and convenience of Mr Haigh and others who might be in a similar position to him. As is well established in planning law, such personal considerations, with respect, count for little when abstract issues of land use and development approval are to be considered. In particular, they do not outweigh the broader public interest and policy intent[.] … 85 Precedent, in the sense of consistency of administrative decision-making, is a value recognised in both administrative law and public administration. An approval given by the Tribunal upon review in this case would naturally lead to an expectation on the part of others in the same position as Mr Haigh that their private access to the waterway would be similarly enhanced, wholly contrary to the policy settings already endorsed by the Tribunal. This situation should be avoided. 86 In the Tribunal's view, there are no arguments of any substance or relevance as regards either planning principle or planning law that would warrant departure from the policies and planning framework applied in Weedon which are equally applicable to the circumstances here. 59 In Plesa the application for review was brought against the Commission for a refusal for the construction of a small 'replacement' jetty on the Minjoogup foreshore (mainland) directly opposite Yunderup Island. On the island side the applicant had a second small licensed jetty. 60 In his decision, Member P McNab (now Senior Member) advised at paras 78 and 79: (Page 15)
61 Clearly the above issues raised by the Tribunal in Weedon, Haigh and Plesa are all relevant in this current case.
Discussion of the case 62 The matter before the Tribunal involves the proposed construction of a private jetty (6 metres by 1.5 metres) on public land on the south (mainland) side of the Minjoogup branch of the Murray River. The applicant owns an existing jetty on public foreshore land adjacent to his property on Yunderup Island at Lot 79 Minjugup Terrace on the north (island) side of the river. 63 What is intended is that the applicant, who has lived on the island for the last 10 years, would construct the new jetty at an existing revetment on the mainland obliquely opposite his property some 80 metres away. The width of the river between the island and the mainland is estimated at some 30 40 metres wide. 64 As explained by the applicant in his response of 15 June 2011 to the Tribunal's orders of 1 June 2011: 65 In considering the issue of private development on public land, the Tribunal is assisted in Riviera Properties Projects PL v East Gippsland SC [2004] VCAT 2605, where the Victorian Tribunal observed, at [9], … I do not think that it is sustainable to argue that the provision of a private jetty, and[/]or a private mooring for a boat, within the Public Park and Recreation Zone is inappropriate as a matter of general principle. It seems to me that the issue to be determined is the question of whether or not a jetty and[/]or mooring is appropriate in the particular circumstances of the case. … 66 This is essentially the argument of the applicant, with the issue being about the need for safe access for his family and himself between Yunderup Island and the mainland, and that the matter should be (Page 16)
determined on the merits of the case and having regard to the Tribunal's decision in Plesa. 67 The circumstance before the Tribunal is that the balance between the protection of river foreshores for conservation purposes and their development for jetties and other boating facilities is a constantly changing relationship, with pressure from nearby residents and the general public to use the river via private and public facilities increasing over time. Both state and local government are attempting to handle this demand via a statutory and policy framework. 68 To that end, the overall intent of the PRS and WS 3.4 is to protect the natural environment and to ensure that the number of boating facilities on the waterways is strictly controlled, and that the alienation of public waterways and foreshore areas is minimised. 69 On this matter the respondent advised in its SIFC at para 37 that: Since WS 3.4 came into effect, no new private jetties have been approved in natural waterways abutting public foreshores equivalent to this ROS reservation unless consistent with WS 3.4. There have been a small number of cases where variations to the jetty dimensions stipulated in WS 3.4 have been permitted, where justified. 70 Although the applicant takes issue with this statement in the context of approvals given within the three 'nonconforming' areas, the Tribunal is satisfied that the relevant public authorities are attempting to limit development to the absolute minimum in order to protect the river and its foreshores. 71 In his submissions the applicant argues that the subject land falls within one of the three 'nonconforming' areas in the locality where jetties may be recommended for approval. However, although the Tribunal does not agree with the applicant on this point, it does agree that the proposed development can still be assessed and determined on the merits of the case. 72 In that sense, what the Tribunal is dealing with here is a development proposal on a narrow branch (Minjoogup branch) of the Harvey River which contains a number of private jetties on the island side (including one owned by the applicant) and a number of private jetties and five revetments for mooring craft on the mainland side. The applicant currently uses one of these revetments to access the river and his property on Yunderup Island via his pontoon vessel. (Page 17)
73 However, his proposal is to construct a private jetty at that revetment and in so doing restrict its use by others. In effect, public access to the river via the revetment would be compromised by the construction of a permanent structure intruding into the river at that point. 74 In fairness to the applicant it should be said that to construct a private jetty away from a revetment would lead to an even worse result, with the destruction of foreshore vegetation and wildlife habitat. 75 On the matter of the applicant's personal circumstances, it is explained in Haigh that personal considerations count for little in the context of the broader public interest and there is a significant risk that an approval in this case could give rise to other similar applications from residents on Yunderup Island and elsewhere. 76 In his submissions the applicant calls for reference to the provisions of the decision in Plesa where a conditional temporary approval was granted for a new jetty on the Minjoogup foreshore. Such an argument is not sustainable, because in Plesa the matter concerned a 'replacement' jetty (that is, replacing one jetty with another) which is not the case here, and the Tribunal was specific in drawing attention to the fact that Plesa '… cannot be regarded as a precedent establishing that delta island owners have a general ''right'' to a mooring point on the public foreshore'. 77 On this point, the fact that the applicant uses Plesa to advance the 'precedent' argument only confirms the belief by this Tribunal that an approval in this case could give rise to other similar applications. 78 Although the Tribunal recognises the arguments of the applicant, they are not of sufficient substance to outweigh the broader public interest and the ongoing attempts by public authorities to protect the waterway and foreshores. 79 The Tribunal determines that the proposed jetty intended for construction on the Minjoogup foreshore (mainland) be not allowed.
Orders 80 The Tribunal makes the following orders: (Page 18)
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