BUNNINGS GROUP LIMITED and PRESIDING MEMBER OF THE METRO NORTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL - [2019] WASAT 121

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   BUNNINGS GROUP LIMITED and PRESIDING MEMBER OF THE METRO NORTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2019] WASAT 121
MEMBER:   MR P DE VILLIERS, MEMBER
HEARD:   24, 25 AND 26 SEPTEMBER 2019 AND 31 OCTOBER 2019
DELIVERED          :   26 NOVEMBER 2019
FILE NO/S:   DR 217 of 2018
BETWEEN:   BUNNINGS GROUP LIMITED
Applicant
AND
PRESIDING MEMBER OF THE METRO NORTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Development - Extension to existing warehouse - Conditions - Application of State Planning Policy 3.7: Planning in Bushfire Prone Areas - Application of Guidelines for Planning in Bushfire Prone Areas - Construction in BAL-40 and BAL-FZ areas - Existing bushfire risk - Discretion to depart from policy - Exceptional circumstances - History of the site - Need to consider existing risks - Inflexible application of policy

Legislation:

City of Stirling Local Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(q), cl 67(r), cl 67(w), cl 78E, cl 78E(i)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), cl 27, cl 27(2)

Result:

Application allowed in part
Conditions varied

Summary of Tribunal's decision:

In September 2017 the applicant sought approval from the respondent for an extension to the existing Bunnings Warehouse and Garden Centre at 191 Balcatta Road, Balcatta.
The proposed development comprised an expansion of the existing warehouse to incorporate the existing timber trade sales and building materials and landscape yard, the expansion of the existing outdoor nursery, and a complimentary reconfiguration of the existing car parking area.
In August 2018 the respondent resolved to approve the proposed development which was subject to twelve conditions of approval.

The applicant subsequently made an application to the Tribunal seeking a review of a number of conditions which were the matters the subject of the current review.

The respondent's issues were as follows:

1. Whether conditions (a)(i), (b), (c), and (d) of the conditions of development ought to be imposed having regard to:

(a) to State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7) and particularly whether it is appropriate for the proposed extension to be located within the Bushfire Attack Level (BAL) Flame Zone (FZ) and BAL 40; and
(b) whether the bushfire management plan and emergency evacuation plan prepared by the applicant satisfactorily address the bushfire issues arising from the site, and whether a bushfire risk management plan should be prepared.

The applicant generally accepted the formulation of the issues.
The substantive issue between the parties was whether the timber trade sales and the building materials and landscape yard, which comprised a substantial component of the proposed development for which approval was sought, should be approved given that parts of these areas were located within the Bushfire Attack Level (BAL) rating BAL-40 and BAL-Flame Zone (Condition (a)(i)).
In the context of the evidence before it in this review the Tribunal found that there was a sound basis for departing from both cl 6.6.2 of SPP 3.7 and Elements 1 and 2 of the Guidelines for Planning in Bushfire Prone Areas and the deletion of condition (a)(i) would accord with both the intent and relevant objectives of State Planning Policy 3.7: Planning in Bushfire Prone Areas.
The application was therefore allowed in part and conditions were varied.

Category: B

Representation:

Counsel:

Applicant	:	P McQueen
Respondent	:	Mr JF Bennett

Solicitors:

Applicant	:	Lavan
Respondent	:	State Solicitor's Office

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

Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avalon Sheds and Stables and City of Belmont [2009] WASAT 67; (2009) 62 SR (WA) 290
Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15
Boynton and Western Australian Planning Commission [2018] WASAT 60
D and Department for Community Development [2007] WASAT 154
D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99
Fitzgerald v FJ Leonhardt (1997) 189 CLR 215
Harmanis Holdings No. 2 Pty Ltd and Western Australian Planning Commission [2019] WASAT 43
Marshall & Anor v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Miller and City of Stirling [2007] WASAT 247
Minister for Immigration and Citizenship v Li [2013] HCA 18
Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Re Centro Properties Ltd [2011] NSWSC 1465; (2011) 86 ACSR 584
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Richardson v Mellish [1824] EngR 715; (1824) 2 Bing 229; 130 ER 294
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59
Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Woodham v Roberts Limited [2010] TASSC 31

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 8 September 2017 the applicant sought approval from the respondent for an expansion of the existing development at No 191 (Lot 101) Balcatta Road, Balcatta (subject site). The existing development comprises a Bunnings Warehouse Hardware Showroom and Garden Centre.
The proposed development involves an expansion of the existing main warehouse, outdoor nursery, timber trade sales, and proposed building materials and landscape yard, and a reconfiguration of the existing car parking area. A Bushfire Management Plan (BMP) dated 6 December 2017 formed part of the application considered by the respondent.
On 7 March 2018 the respondent resolved to defer the application for three months for the following reason:
There is currently insufficient documented information concerning those parts of the development in bushfire prone areas of the site and how they are affected by relevant parts of SPP 3.7 for the JDAP to make an informed decision.
The applicant submitted a further Bushfire Management Plan dated 22 May 2018 providing more detail in relation to the bushfire hazard. No modifications to the previously submitted development were proposed.
On 6 August 2018 the respondent resolved to approve the proposed development. This approval was subject to 12 conditions of approval and three advice notes.
Conditions (a), (b), (c), and (d) attached to the approval read as follows:
a)Prior to commencement of development, revised plans are to be submitted to the satisfaction of the City demonstrating the following:
i.The deletion of the Timber Trade Sales Extension and the enclosed Building Materials and Landscape Yard, which is located within the Bushfire Attack Level (BAL) rating BAL-40 and BAL-Flame Zone:
…
b)Prior to commencement of development, a revised Bushfire Management Plan, shall be prepared to the City's satisfaction and thereafter implemented in accordance with State Planning Policy 3.7- Planning in Bushfire Prone Areas.
c)Prior to commencement of development, a Bushfire Risk Management Plan shall be prepared to the City's satisfaction and thereafter implemented in accordance with the Guidelines for Planning in Bushfire Prone Areas.
d)A revised Bushfire Evacuation (Response) Plan shall be prepared to the City's satisfaction and thereafter implemented. The revised plan shall address the following:
i.Clearly identify the housekeeping tasks and the emergency evacuation procedure, including the trigger for building evacuation;
ii.Information to be included in relation to any relevant building features, such as warning systems;
iii.Flammable materials on site to be detailed in the hazards section;
iv.Roles and responsibilities of the facility personnel are to be well defined;
v.On-site assembly point on Appendix 6 is to be altered to a location outside of the BAL 12.5 contour; and
vi.Evacuation centre to be depicted on Appendix 7.
On 31 August 2018 the applicant made an application to the Tribunal seeking a review of conditions (a)(i), (b), (c), and (d). These are the matters the subject of the current review.

Site and locality

The subject site is located at No 191 (Lot 101) Balcatta Road, Balcatta.
The subject site is located within the City of Stirling approximately 13 kilometres north of the Perth Central Business District and is bounded by Reid Highway to the north, Erindale Road to the west, Balcatta Road to the south and a private commercial lot to the east.
The road reserve under the Metropolitan Region Scheme (MRS) for Reid Highway to the immediate north of the subject site contains remnant vegetation. The land is reserved for a future interchange although the timing is uncertain. The northern section of the subject site is bushfire prone. It is noted that this situation was not affected by the amendments to the map of Bush Fire Prone Areas published on the 30 July 2019.
The subject site has access to Erindale Road (left in - left out only) and Balcatta Road (full access).
The subject land is 43,546m² in area and currently contains:
•a 7,72 5m² hardware showroom;
•a 1,062m² timber trade sales area;
•a building materials and landscape yard area of 4,474m²;
•ancillary storage buildings;
•a 1,220m² outdoor nursery area;
•a 1,407m² bagged goods canopy area; and
•464 bays of ancillary car parking.
With the exception of the road reserve to the north the land in the immediate vicinity of the subject site is fully developed for industrial and commercial uses.

The proposed development

The proposed development involves amendments to the subject site and building layout, changes to the access and parking arrangements and a number of proposed signs.
The amendments to the subject site and building layout comprise the following components:
•The building materials and landscape yard is reduced in area from 4,474.0m² to 501.7m².
•The main entry area is reduced in area from 97.8m² to 78.2m².
•The main warehouse area is increased in area from 7,725.0m² to 8,989.1m².
•The timber trade sales area is increased from 1,062.6m² to 4,006.3m².
•The outdoor nursery area is increased in area from 1,220.0m² to 1,385.0m².
•The bagged goods canopy area is increased from 1,407.9m² to 946.5m².
•The outdoor nursery area will be provided with a canopy, shade sails and finger mesh fencing.
The access and parking arrangements will involve restricting the existing crossover from Balcatta Road to leftin movement only, a reduction in the provision of car parking from 464 bays to 443 bays, the provision of 16 bicycle parking locations near the entrance and a central footpath for pedestrian movement through the carpark to the main entry point.
The proposed signage includes a monolith sign on the corner of the intersection of Balcatta Road and Erindale Road which is proposed to be 12 metres high and 4.8 metres in width and a number of wall signs which comprise three 'Bunning Warehouse' logos, two 'Red Hammer' logos and two directional signs.
Importantly in terms of the current review the Bushfire Attack Level (BAL) report indicates that the timber trade sales extension and the enclosed building materials and landscape yard fall partially within the area identified as having a BAL-40 and a BAL Flame Zone (BALFZ).

The planning framework

The subject site is zoned 'Industrial' under the MRS and is zoned 'Mixed Business' under the City of Stirling Local Planning Scheme No 3 (LPS 3).
Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) sets out matters to which local government, or the Tribunal on review, is to have due regard in considering an application for development approval. In this review the following matters are relevant to the development the subject of the application:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w)the history of the site where the development is to be located;
..
(y)any submissions received on the application;
…
(zb)any other planning consideration the local government considers appropriate.
In addition cl 78E of Sch 2 of the LPS Regulations, in dealing with matters to be considered for development approval, reads as follows:
(1)In considering an application for development approval for development to which this Part applies, the local government is to have regard to the bushfire resistant construction requirements of the Building Code.
(2)The matters referred to in subclause (1) are in addition to any other matters that the local government is to have regard to in considering the application in accordance with this Scheme.

Issues

The respondent set out its issues in its Statement of Issues Facts and Contentions dated 22 March 2019 as follows:
Whether conditions (a)(i), (b), (c), and (d) of the conditions of development ought to be imposed having regard to:
(a)to State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7) and particularly whether it is appropriate for the proposed extension to be located within the Bushfire Attack Level (BAL) Flame Zone (FZ) and BAL 40; and
(b)whether the bushfire management plan and emergency evacuation plan prepared by the Applicant satisfactorily address the bushfire issues arising from the site, and whether a bushfire risk management plan should be prepared.
In responding the applicant generally accepted the formulation of the issues put forward by the respondent. In doing so the applicant observed that the existing land use comprises elements of the operation in areas identified as BAL-FZ and BAL-40 and noted that the respondent had not indicated that those elements of the existing development have been constructed otherwise than in accordance with the historical approvals from the City of Stirling. In addition the applicant observed that the respondent takes no issue with the development application in relation to the suitability of the proposed land uses under the relevant planning framework.
The Tribunal will deal with the two issues identified in turn. However, prior to doing so it is important to consider the relevant provisions of the current bushfire policy and related guidelines.

Bushfire policy

Given the matters before the Tribunal in this review the relevant provisions of State Planning Policy 3.7: Planning in Bushfire Prone Areas (SPP 3.7) and the Guidelines for Planning in Bushfire Prone Areas (Guidelines) need to be set out in some detail.

SPP 3.7

Clause 2 sets out the policy intent of SPP 3.7 in the following terms:
The intent of this policy is to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure.
Clause 4 requires that the policy 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.
Clause 5 sets out the policy objectives as follows:
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.
5.4Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change.
Clause 6.2(a) requires that development applications:
within designated bushfire prone areas relating to land that has or will have a Bushfire Hazard Level (BHL) above low and/or where a Bushfire Attack Level (BAL) rating above BAL-LOW apply, are to comply with these policy measures.
In setting out the information required to accompany development applications, in accordance with the Guidelines, cl 6.5 provides that '[t]his information can be provided in the form of a Bushfire Management Plan'.
However, cl 6.6.2 the policy stipulates that:
… development applications for vulnerable or high-risk land uses in areas of BAL-40 or BAL-Flame Zone (FZ) will not be supported unless they comply with policy measures 6.6.1 and 6.7.2.
It should be noted that the reference to cl 6.6.1 appears to be atypographical error as cl 6.7.1 is the relevant clause.
Clause 6.7.1 deals with 'minor development' in areas where BAL40 or BAL-FZ applies. Minor development is defined in cl 7 asfollows:
Minor development: Refers to applications in residential built-out areas at a scale which may not require full compliance with the relevant policy measures. Classes of development considered under this definition, with the exclusion of applications for unavoidable development, are:
•a single house on an existing lot 1,100m² or greater;
•an ancillary dwelling on a lot of 1,100m² or greater;
and
•change to a vulnerable land use in an existing residential development.
Cl 6.7.2 deals with 'unavoidable development' in areas where BAL-40 or BAL-FZ applies. Unavoidable development is defined in cl 7 as follows:
Unavoidable development: Development that, in the opinion of the decision-maker, represents exceptional circumstances where full compliance with this policy would be unreasonable; no alternative location exists; it is not minor development; and is not contrary to the public interest. Examples of what constitutes unavoidable development are provided in the Guidelines.
Clause 6.11 sets out the precautionary principle in the following terms:
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.

A footnote to cl 6.11 provides guidance as to the application of that clause in the following terms:
1 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 decision-making to support innovative bushfire risk management solutions.

The Guidelines

Clause 1.1 of the Guidelines sets out the purpose of the Guidelines as assisting in:
•determining appropriate land use planning in relation to bushfire prone areas across the State of Western Australia;
•specifying the requirements to be met at each stage of the planning process; and
•ensuring that necessary bushfire protection measures are incorporated into development.
Clause 2.5 addresses discretionary decision-making and the precautionary principle in the following terms:
The decision-maker is to exercise judgement when considering the merits of proposals that do not satisfy the policy objectives and measures of SPP 3.7 or the acceptable solutions in the bushfire protection criteria. Bushfire risk to people, property and infrastructure should be addressed at a scale that is consistent with the proposal being considered and based on appropriate levels of information. In exercising judgement, the decision-maker should consider:
•the intent, objectives and policy measures of SPP 3.7 and these Guidelines;
•the need to apply the precautionary principle;
•compliance with any provisions of the local planning scheme or local planning policy relating to bushfire;
•whether the bushfire hazard can be reduced to an acceptable level;
•whether the proposed measures can be practically implemented and maintained for the life of the development or land use;
•whether the proposal demonstrates an improvement or innovation in bushfire risk management that improves the bushfire outcome on the site and surrounds; and
•advice received from relevant referral agencies.
Clause 4.5 introduces the bushfire protection criteria (set out in Appendix 4 to the Guidelines) and at cl 4.5.1 how the criteria are to be read:
The bushfire protection criteria (Appendix Four) are a performancebased system of assessing bushfire risk management measures. An assessment against the criteria is to be undertaken for any strategic planning proposal, subdivision and development application for a site that has or will, on completion, have a bushfire hazard level above 'Low' or a BAL rating above BAL–LOW.
The bushfire protection criteria consist of four elements:
•   Element 1: Location
•   Element 2: Siting and design of development
•   Element 3: Vehicular access
•   Element 4: Water
Clause 4.5.2 deals with the application of the criteria as follows:
For a proposal to be considered compliant with SPP 3.7, the intent of each element of the bushfire protection criteria, as listed in Appendix 4 of these Guidelines must be satisfied. To satisfy compliance with the 'intent', either the acceptable solutions or the performance principles must be demonstrated[.]
Clause 5.4 sets out the matters to be considered by decisionmakers when assessing development applications in bushfire prone areas as follows:
•the existing requirements of the relevant scheme;
•the objectives and policy measures contained in SPP 3.7 and these
•Guidelines, including the bushfire protection criteria;
•any existing Bushfire Hazard Level assessment, BAL Contour Map, BAL assessment or similar existing document in relation to the subject site;
•any applicable or indicative BAL for the subject site;
•the vulnerability or high risk nature of the land use;
•the proximity of the site to existing settlement areas;
•the capacity of existing fire fighting infrastructure; and
•any existing local biodiversity strategy or conservation plan.
Appendix 4 of the Guidelines deals with the Bushfire Protection Criteria and notes:
… Each element has an intent outlining the overall aim. The acceptable solutions provide examples of how that intent may be met. The performance principle allows for 'alternative solutions' to be developed where acceptable solutions cannot be achieved.
The intent of the four criteria are as follows:
ELEMENT 1: LOCATION
Intent: To ensure that strategic planning proposals, subdivision and development applications are located in areas with the least possible risk of bushfire to facilitate the protection of people, property and infrastructure.
ELEMENT 2: SITING AND DESIGN OF DEVELOPMENT
Intent: To ensure that the siting and design of development minimises the level of bushfire impact.
ELEMENT 3: VEHICULAR ACCESS
Intent: To ensure that vehicular access serving a subdivision/development is available and safe during a bushfire event.
ELEMENT 4: WATER
To ensure that water is available to the subdivision, development or land use to enable people, property and infrastructure to be defended from a bushfire.

Issue: State Planning Policy 3.7 (SPP 3.7)

Extensions within the BAL-FZ and BAL-40

Bushfire evidence

Mr Jackson Parker and Mr Clinton Kuchel provided expert evidence on bushfire for the respondent while Mr Michel Scott and Mr Anthony Rowe provided expert evidence on bushfire for the applicant.
Mr Parker argued that the proposed development constitutes a high risk land use (Witness Statement (WS) para 23), and to build an extension of the existing building into an area of BAL-40 and BAL-FZ does not comply with Acceptable Solution of Element 1 of the Guidelines (WS para 35).
Furthermore he argued that the proposed development cannot achieve the performance principles of Element 1 or Element 2 (WS para 120). In regard to Element 1 given that if hazard separation to achieve development in an area of BAL-29 or below is not achievable, in his view, the land is not considered suitable for development (WS para 37). In regard to Element 2 Mr Parker argued the siting and design of the proposed development should incorporate hazard separation measures that significantly reduce the heat intensities at the building surface and achieve the 9 metre wide perimeter access and turning radius provisions required by the Department of Fire and Emergency Services (DFES) 'GL-11: Site Planning and Fire Appliance Specifications' (GL11) (WS para 48).
In terms of the discretion established by the performance principle and explanatory notes of Element 1 Mr Parker was of the view that the proposed development does not meet the criteria of either 'unavoidable development' (WS para 50) or 'minor development' (WS para 55).
Based on his assessment Mr Parker concluded that the proposed merit based assessment is not a performance principle based solution and therefore the justifications provided have not been assessed against the relevant performance criteria and have not been developed and supported by the information required by clause 4.5.5.2 Performance Principle-Based Solutions of the Guidelines (WS para 59). An important underpinning for Mr Parker's conclusion was his view that the application of AS3959 (Construction of buildings in bushfireprone areas), which constitutes a critical component of the proposed performance principle based solution, would not be enforceable as a condition of development approval (WS para 93).
For these reasons the proposed development would, in his view, not achieve the policy intent of SPP 3.7 or Policy objectives 5.1 and 5.2 as it would increase the threat of bushfire to people, property and infrastructure (WS para 126) and should not therefore be entertained.
The evidence provided by Mr Kuchel essentially addressed both the potential impact to the community arising from a bushfire originating in the bushland reserve to the north of the subject site impinging on the proposed development and contents within the development (WS para 6) and a bushfire originating in the proposed development and its potential impact on the bushland reserve (JK2 page 3).
His assessment applied the comprehensive approach to emergency management (adopted by the Federal Attorney General Department and the State Emergency Management Committee) (WS para 9). This approach addressed prevention/mitigation activities, preparedness activities, response activities and recovery activities (WS para10).
Mr Kuchel stressed that in the application of the 'State Strategic Control Priorities' the fundamental priority for Incident Controllers remains the preservation of life (WS para 13).
Mr Kuchel was the Incident Controller of the Bunnings Inglewood fire which occurred on 26 February 2018.
In regard to the matter under review Mr Kuchel's opinion was that the greatest risk to the community will arise from the unrestrained propagation of fire within the building(s) (WS para 28). It was his view that there are two instances where a fire could spread from the proposed development to the bushland reserve to the north:
•a fire originating in the building being influenced by South South East, southerly or South South West prevailing winds causing ember attack, ignition by radiant heat and/or direct contact with flames; or
•where igniting projectiles come to rest on the bushland reserve causing ignition of the native vegetation (WS para 21 c. iii).
His concerns with a fire in the proposed development include the possibility that the internal layout may hamper fire-fighting efforts; the emergency water supply does not meet relevant building standards (hydrant flow and hydrant coverage); and the sprinkler system and booster assembly is insufficient to meet current building standards (WS para 21d. iv and v). In addition the restricted access on the eastern and northern extent of the subject site was a particular concern for Mr Kuchel (WS para 21 h, i).
However, Mr Kuchel took the view that:
.. the current configuration of the use of land intended for development presents a greater risk to the community than the construction of the Proposed Development if the Proposed Development is constructed to BAL-FZ standards or equivalent as per AS 3959.
(WS para 30)
On this basis while he recommended that condition (a)(i) ought not to be imposed this was premised on the requirements that the proposed development is constructed to BAL-FZ standards meeting AS 3959 and that adequate large vehicle access and sufficient firefighting water supply is provided (WS para 30).
Mr Rowe acknowledged that the proposed development does not satisfy the acceptable solutions for Element 1 and 2 (WS para 50) and did not sit comfortably with the intent of Element 1 and 2 (WS para 77). He did however, drawing on cl 5.7 of the Guidelines, argue that the proposed development constitutes 'unavoidable development'. This is based on contentions that an alternative location is not practical and the examples of private development provided in the Guidelines speak of an intensification of use. Mr Rowe was of the opinion that the proposed development does not constitute an intensification of use (WS para 56c). In addition he argued the proposed development is considered to represent exceptional circumstances (WS para 60a).
Furthermore, Mr Rowe was of the view that the proposed development offers advantages over the present situation (WS para 56d).
In regard to the question of access Mr Rowe argued that the 6 metre wide access proposed is compliant with the Deemed to Satisfy requirement at C2-C2.4(b) in NCC Vol 1 2019 (WS para 56d).
On this basis Mr Rowe concluded the proposed development will reduce the risk associated with the current use and is a cogent reason to not inflexibility apply the presumption against approving development. He stressed however any such approval should be subject to conditions requiring that the building is constructed to a Fire Resistant Level 90/90/90 and a 6 metre wide unconstrained vehicle access way is provided around the perimeter of the building (WS para 82).
Mr Scott in his evidence observed that 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' (WS para 19). On this basis he argued the policy intent recognises the requirement for risk-based assessment (WS para 20).
It was his view that SPP3.7 provides for circumstances where a development subject to a BAL-40 of BAL-FZ rating can be considered for approval and establishes the justification that is required to support such an application (WS para 24).
In his evidence Mr Scott modelled bushfire behaviour within the bushfire prone vegetation by determining its potential intensity of impact (WS paras 34 - 46).
While he conceded that the proposed development cannot comply with the acceptable solutions for both Element 1 and 2 of the Guidelines (WS para 54) he sought to provide, under the provision of cl 4.5.2.2 of the Guidelines, a performance principle-based solution as an alternative to those set out in the acceptable solutions of the Guidelines. (WS para 60)
In doing so Mr Scott argued that in his opinion a merit based assessment aligned with the requirements of either 'minor' or 'unavoidable' development and considered against the intent and objectives of SPP 3.7 and the principles outlined in policy measures 6.7.1 or 6.7.2 (of SPP3.7) can justifiably be created (WS para 80). The BMP provided with the application for the proposed development aligned with the requirements for 'minor development'. (WS para 80)
In applying a risk-based approach Mr Scott argued the proposed development improves the bushfire performance of the existing buildings and areas and provided a detailed assessment of the relevant building elements/areas which sets out the potential reduction in risk associate with the proposed development for each building element/area (WS paras 87 - 92).
On this basis Mr Scott concludes that the bushfire performance of the proposed Bunnings Warehouse building and workspace within the subject lot will be significantly improved when compared with the existing layout and structure and that the risk from bushfire to people and property would be significantly reduced (WS para 93 (h)).
In addition to the provision of individual witness statements the bushfire experts provided a joint witness statement.
In the joint witness statement the bushfire experts agreed:
•SPP 3.7 establishes the presumption against approving the introduction or intensification of development or land use in an area that is or will be on completion subject to a BAL-40 or BAL-FZ rating unless the proposal is considered to be a minor development or unavoidable development. (Issue 5: Agreed matter 1)
•The proposed development cannot be considered a minor development as defined in SPP 3.7. (Issue 5: Agreed matter 2)
•The proposed development is a high-risk land uses as defined by SPP 3.7. (Issue 5: Agreed matter 3)
•The proposed development does not comply with the Acceptable Solution for Element 1: Location. (Issue 6: Agreed matter 1)
•The proposed development does not comply with the Acceptable Solution for Element 2: Siting and Design of Development. (Issue 6: Agreed matter 2)
•The proposed development can comply with the relevant Acceptable Solutions for Element 3: Vehicular Access. (Issue 6: Agreed matter 3)
•The proposed development can comply with the relevant Acceptable Solutions for Element 4: Water. (Issue 6: Agreed matter 4)
An issue which consumed considerable time in the final hearing was the question of the relevant criteria to be applied to the perimeter vehicular access (PVA) requirements across the northern end of the site.
Criteria are set out in three relevant documents:
•Element 3: Vehicular Access set out in the Guidelines which establish a minimum trafficable surface for fire service access routes (perimeter roads) at 6 metres (Table 6);
•C2.4 Requirements for Open Space and vehicular access of the National Construction Code (referenced in attachment JAP 3 to the witness statement of Mr Parker as the Building Code of Australia (Building Code)) which requires that vehicular access must have a minimum unobstructed width of 6 metres; and
•GL-11 DFES Site Planning and Fire Appliance Specifications (A Guidance document) (GL-11) which requires that the entire PVA shall have a minimum width of 6 metres throughout and in a separate provision requires lateral clearance for a PVA of 9 metres.
The width of the vehicular access proposed across the northern end of the subject site varies from a minimum of approximately 6.75 metres towards the western end of the proposed warehouse extension to approximately 12.5 metres at the eastern end. It was confirmed by the experts in the hearing that of the overall distance of the proposed extension (approximately 118 metres) approximately 55 metres, towards the western end, would have a width of below the 9 metres required by GL11.

Planning evidence

Mr Peter Wright initially provided an expert planning witness statement for the respondent. However, health issues resulted in Mr Wright having to withdraw from the proceedings and Ms Jaqueline Holm provided substituted expert planning evidence for the respondent.
Ms Holm laid emphasis on the fact that cl 6.7 of SPP 3.7 states that development applications which will result in intensification of development in an area that has or will, on completion, have a BAL-40 or BAL-FZ will not be supported unless the proposal is considered minor development or unavoidable development (WS para 22).
Furthermore, she argued the proposed development, in her view, does not meet the definition of unavoidable development (WS para 25) or minor development (WS para 27).
It was Ms Holm's opinion that the warehouse extension does not meet the requirements of Elements 1 and 2 of the Guidelines and that the proposal is inconsistent with SPP 3.7 (WS para 36).
Ms Holm argued that there is no scope to consider development that is within areas of BAL-40 or BL-FZ and that she believed full compliance with the policy is achievable and not unreasonable (WS para 31).
This was a view unequivocally restated in her oral evidence; that as the proposal does not comply with the provisions of SPP 3.7 and the Guidelines it should be refused.
For these reasons Ms Holm argued that condition (a)(i) is necessary to ensure compliance with SPP 3.7. Furthermore should condition (a)(i) be applied, in her view, a new BAL assessment would be required to demonstrate the proposed extension is within an area of BAL 29 or below; Element 1 and 2 will need to be updated and section 5.5 would no longer be required and condition (b) should therefore stand. In regard to condition (c) Ms Holm argued the increased hazard stemming from the on-site storage of flammable materials require that a Bushfire Risk Management Plan is required. Finally in regard to condition (d) Ms Holm argued that should condition (a)(i) be satisfied a Bushfire Emergency Response Plan would no longer be necessary.
Mr Mark Szabo provided expert planning evidence for the applicant.
Mr Szabo argued:
It is my understanding that the nature and location of the development in an urban/metropolitan area and its identification as located in a bushfire prone area is not appropriately catered for by SPP 3.7 and the policy measures at 6.6.1 and 6.7.2.
(WS para 10)
This was based on Mr Szabo's view that State Planning Policy 1 (SPP1) provides that planning decisionmakers should demonstrate sound governance by 'iii. Assessing planning proposals on their merits, applying discretion where justified, and clearly articulating the reasons for any departures from policy' and on this basis it is open to the respondent seek discretion for any departures from SPP 3.7 (WS para 12).

In seeking such discretion Mr Szabo argued that it is appropriate for the proposed extension to be located within the BAL-40 or BAL-FZ for the following reasons:
•The proposed development is located within an established Mixed Business area;
•The site accommodates an existing open timber trade sales area and storage building already within the BAL-40 or BAL-FZ;
•The proposed development greatly improves the bushfire management of the site by reducing the bushfire-related risk level to the community and property consistent with SPP 3.7 provision 6.7.2 (b);
•The proposed use is not considered to be a vulnerable land use and thus should be considered suitable.
(WS para 13)
An important contention underpinning Mr Szabo's evidence was his view that the proposed development is not considered to be an intensification of development. He argued that the proposal to enclose the existing open timber trade sales area with a new building should be considered to be a continuation of an approved use (WS para 21).
Furthermore, his view was that the bushfire management plan demonstrates that the risk can be managed (WS Szabo para 23).
Subsequent to the filing of Ms Holm's witness statement Mr Szabo was granted leave to file a brief responsive statement to the substituted witness statement.
In his responsive statement Mr Szabo raised concerns in regard to three matters addressed by Ms Holm.
He questioned the contention that the proposed development constitutes an intensification of development and argued that the proposed extension of the warehouse will consolidate the existing activities on the site and improve the existing arrangements relating to bushfire risk management (RWS paras 11 and 12).
In addition Mr Szabo challenged Ms Holm's view that to meet the performance principle the development must be in an area of BAL-29 or lower. He did so on the basis that only a portion of the proposed development is located within an area identified as BAL-40 and BALFZ and therefore in his view the proposed development ought not be summarily dismissed as being non-compliant and instead warrants further consideration when applying the policy (RWS para 19).
Finally, Ms Szabo challenged Ms Holm's view that the fact that the northern wall to the proposed development might be exposed to direct flame reduces the opportunity for the provision of a defendable space. He argued that the proposed building is set back 7 metres from the bushfire prone vegetation at its closest point and considers this to be a sufficient 'defendable space' in terms of width, location abutting the building and trafficability (RWS para 23).

Tribunal considerations

The substantive issue between the parties was whether the timber trade sales and the building materials and landscape yard, which comprise a substantial component of the proposed development for which approval is sought, should be approved. It was not contested that these areas are partially located within the BAL rating BAL-40 and BAL-FZ.
In this context the respondent's contention was, in essence, that full compliance with SPP 3.7 is not unreasonable and development which does not meet this requirement should not be supported (SIFC para 71).
The applicant advanced three possible contentions:
•The proposed development could be considered 'analogous' to minor development under cl 6.7 of SPP 3.7;
•The proposed development could be considered unavoidable development under cl 6.7 of SPP 3.7; or
•The proposed development could be considered on its merits under the discretionary provisions of SPP 3.7.
The Tribunal is not persuaded that the proposed development can be considered 'analogous' to minor development because the scale of the proposal is widely at variance with the scale established by the definition of 'minor development' set out in cl 7 of SPP 3.7 and the development does not involve residential use.
In addition the Tribunal is not convinced that the proposed development can be considered 'unavoidable development'.
During the hearing the question of 'alternative location' was raised. Mr Jason Van Eden, the development approvals manager for the applicant provided evidence. He confirmed that the intention behind the proposed development was to consolidate all the buildings and outdoor areas into one fully enclosed building. He considered that this would make the facility operationally more efficient and safer both in terms of fire risk and in terms of reducing the conflict points on site between service vehicles, customers' vehicles and pedestrians.
In response to a suggestion that the applicant could potentially reconfigure the proposed development to locate it on a different part of the site Mr Van Eden suggested that hypothetically anything can be done but the applicant would not consider such an option. In the absence of the identification and evaluation of potential alternative locations the Tribunal has no evidentiary basis to find that no alternative location exists.
However, while in order to find for the applicant on the third contention a merits review would require that a cogent case for departure from the policy was established, the principle that policy should not be inflexibility applied means that it is open to the Tribunal to consider the proposed development on this basis.
Importantly, if condition (a)(i), the deletion of the timber trade sales extension and the enclosed building materials and landscape yard is imposed, it is clear that the existing opensided undercover storage area within the northern section of the existing building, the opensided shed to the north of the existing building, the open air storage area adjacent to these structures and the existing opensided timber storage building located in the northwest portion of the subject site will remain in place.
Each of these structures currently contains combustible materials and is in reasonably close proximity to the classified bushfire prone vegetation (Under AS 3959 2009 Class B Woodland and Class G Grassland) located on the road reserve to the north of the subject site (WS Rowe paras 18, 19 and 20).
In regard to these risks the bushfire experts agreed that:
•The relevant building/area No. 3 (JWS page 3) comprising a shed open to the west located to the north of the existing warehouse is subject to potential flame contact and radiant heat flux corresponding to the BALFZ rating.
•The relevant building/area No. 4 (JWS page 3) comprising opensided roofed timber racks located in the northwest section of the subject site are subject to potential flame contact and radiant heat flux corresponding to the BAL-40 rating.
•The relevant building/area No 6 comprising an open retail/storage area to the north of the existing warehouse is subject to potential flame contact and radiant heat flux corresponding to the BAL ratings ranging from BAL-FZ to BAL-19 (JWS pages 3 to 4).
•Relevant unenclosed buildings and outside areas have been observed to store and display combustible materials and flammable materials (JWS page 4).
Furthermore, in his witness statement Mr Parker accepts that:
… the current development is not built to a bushfire construction standard and that the externally stored flammable materials on site pose a risk of secondary fires from a bushfire event as well as restricting external access to emergency services around the building.
(WS para 90)
In addition Mr Kuchel in his witness statement expressed the view, apparently resiled from in oral evidence, that:
the current configuration of the use of land intended for development presents a greater risk to the community than the construction of the Proposed Development if the Proposed Development is constructed to BAL-FZ standards or equivalent as per AS 3959.
(WS para 30).
Ms Holm was unable to assist the Tribunal in this regard as she had not visited the subject site.
Following the receipt of evidence from the bushfire experts in the hearing and in order to clarify the final positions of the respective experts the Tribunal put the following questions to the bushfire experts:
1)Does the reserve to the north of the subject site constitute a bushfire risk? (ts 253, 26 Sept 2019)
All the bushfire experts answered in the affirmative.
2)Does the flammable material in the roofed timber racks in the carpark area and in the roofed but open trade sales area on the subject site constitute a fire risk? (ts 253, 26 Sept 2019)
All the bushfire experts answered in the affirmative.
3)Is the overall risk in the locality exacerbated by the proximity of the flammable material on subject site to the reserve to the north of the site? (ts 253, 26 Sept 2019)
All the bushfire experts answered in the affirmative.
4)Do you consider that the current configuration of the use of the land presents a greater risk to the community than the construction of the proposed development? (ts 254, 26 Sept 2019)
Mr Scott and Mr Rowe answered in the affirmative.
Mr Kuchel advised '[t]hey would have provided a definitive answer to that due to my current, the current rotaries around that standard with what I now know' (ts 254, 26 Sept 2019). It is to be noted that in providing this response Mr Kuchel effectively resiles from a statement in para 30 of his witness statement (See [56] and [104] above).
Mr Parker provided the following response:
My answer, without a comprehensive risk assessment, I do not have enough information to … make a judgement between the risk to the greater to the site and greater community of either option being higher than the other.
(ts 258, 26 Sept 2019)
In clarifying this response Mr Parker advised 'there is a large amount of uncertainty which doesn't give myself the ability to make a yes or no answer' (ts 260, 26 Sept 2019).
The response from Mr Parker raised the question of the basis for recommendation of DFES to the respondent in regard to the proposed development and the Tribunal put the following question to him:
If you can't come to a conclusion without a comprehensive risk assessment, on what basis did DFES recommend that the northern end of the building shouldn't be there?
(ts 262, 26 Sept 2019)
Following extended prevarication Mr Parker conceded the basis for the recommendation to the respondent was based on an assessment of whether the proposal addressed SPP 3.7 and the associated Guidelines or not.
In seeking to clarify this response the Tribunal put the following to Mr Parker:
So basically your argument is that what you believe was necessary to be provided under your interpretation of the policy was not provided and that formed the basis for your recommendations to the respondent.
(ts 263, 26 Sept 2019)
Mr Parker acknowledged that this formed part of the basis without identifying any additional relevant factors.
One of the submissions put by the applicants was that the proposed development could be considered 'unavoidable development' under cl 6.7.2 of SPP 3.7.
In response to extended questioning from the Tribunal Mr Parker conceded, with considerable reluctance, that on the assumption that the proposed development constituted 'unavoidable development' and in applying the test of 'public interest' you do need to take current risks into account.
While not directly relevant to the matters before the Tribunal in this review it is noted that 'Position Statement: Planning in bushfire prone areas Demonstrating Element 1: Location and Element 2: Siting and design' (WAPC November 2019) states at cl 5.2:
The hazards remaining within the site should not be considered in isolation of the hazards adjourning the site[.]
(Emphasis added)
Under crossexamination from counsel for the applicant Mr Parker conceded that discretion and a holistic consideration of the merits of a proposed development are built into the Guidelines associated with SPP 3.7.
However, it is the view of Mr Parker that without a comprehensive risk assessment he is not able to assess whether the current configuration of the use of the land presents a greater risk to the community than the construction of the proposed development. This raise two questions for the Tribunal:
a)There is nothing in either SPP3.7 or the Guidelines which requires that an applicant provide a comprehensive risk assessment as part of the documentation required for a proposed development in a bushfire prone area.
b)The evaluation of the proposed development by DFES apparently did not assess the current risks on the subject site and relied on an assessment which was limited to whether the proposed development complied with the relevant provisions of SPP 3.7 and the Guidelines.
In these circumstances the only inference one can reasonably draw is that in establishing the recommendations provided to the respondent, and as reiterated in the witness statement of Mr Parker in the current proceeding, DFES had no basis to address the intent of SPP 3.7 to 'implement effective risk-based land use planning' to 'reduce the impact of bushfire'.
Furthermore, Mr Parker could not have come to a conclusion as to whether the proposed development would avoid any increase in the threat of bushfire (SPP 3.7 cl 5.1) or reduce the vulnerability to bushfire through the identification and consideration of bushfire risks (SPP 3.7 cl 5.2).
The approach taken by Mr Parker in the view of the Tribunal constitutes the inflexible application of the policy regardless of the merits of the particular proposal before him; an approach reflected in the evidence of Ms Holm (Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 (Tah Land)).

Tribunal findings

In this context the contention of the respondent that 'full compliance with SPP 3.7 is not unreasonable' is one which, given the evidence before it in this review that the current configuration of the use of land intended for development presents a risk to the community (WS Parker para 90, WS Kuchel para 30, WS Rowe para 56(d), WS Scott 85), is not one the Tribunal is necessarily persuaded to support.
The intent of SPP 3.7 set out in cl 2 is to 'implement effective, riskbased land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure'. (Emphasis added)
In addition cl 5.1 of SPP 3.7 seeks to '[a]void any increase in the threat of bushfire to people, property and infrastructure' while cl 5.2 seeks to '[r]educe vulnerability to bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process'. (Emphasis added)
The evidence of the bushfire experts is that the current arrangements on the subject site constitute a substantive fire hazard.
On the 24 September 2019 following opening submissions, the Tribunal, in the company of counsel for both parties and their various experts, undertook an extensive viewing of the both the subject site and the reserve to the north. This confirmed the existing fire hazards on the subject site and the reserve to the north of the subject site.
Mr Scott in his witness statement provided extensive evidence of the ability of the proposed development to improve the bushfire performance of the existing buildings and area (WS paras 84 92). This evidence was not contested by the respondent.
In the current review it is not contested that there is discretion to depart from the policy (respondent's SIFC para 72; applicant's SIFC para 35.8; WS Szabo para 12) and the question for the Tribunal, in seeking to come to the correct and preferable decision, is whether, in the exceptional circumstances of this case, such discretion should be exercised.
In regard to exceptional circumstances in Avalon Sheds and Stables and City of Belmont [2009] WASAT 67; (2009)62SR(WA) 290 (Avalon Sheds), one of the issues before the Tribunal in that matter was whether there were exceptional circumstances to justify a variation in the prescribed setback. The Tribunal in determining that issue considered that it was important to make clear what was meant by the expression 'exceptional circumstance' so that the parties could give evidence and make submissions against a common understanding of the phrase. The Tribunal, at [28] [29] in Avalon Sheds, cited the following from D and Department for Community Development [2007] WASAT 154 in which Chaney J said at [19] [20]:
19.The Act does not define 'exceptional circumstances'. The Australian Concise Oxford Dictionary (2nd Edition), Oxford University Press, Melbourne, 1992 defines exceptional as 'forming an exception; unusual; not typical'. In Baker v TheQueen (2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:
'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'
20.In Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26], Rares J after referring to the observation of Griffiths v R (1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that 'although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances', said:
'Exceptional circumstances within the meaning of s 106KA(2) [of the Health Insurance Act 1973 (Cth)] can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional …
It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.'
In this regard the Tribunal finds that the evidence before it, which is set out in some detail above, establishes that the issues before it in this proceeding constitute circumstances which are out of the ordinary course, unusual, special or uncommon and therefore constitute exceptional circumstances. These arise from the atypical urban context of the subject site and the very specific nature of the proposed development, particularly when considered in light of the evidence of the existing fire risks on the subject site. In addition should the reserve to the north be developed for the purpose for which it is reserved the bushfire risk could well diminish or potentially be eliminated.
Clause 67(w) of Sch 2 of the LPS Regulations provides that a decisionmaker is to have 'due regard' to the following matter:
(w)the history of the site where the development is to be located[.]
This was a matter addressed by the Tribunal in D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99 where the Tribunal observed at [66] [68] as follows:
66In our view, this factor ('history of the site') should be considered as 'broad and general' enough to include considerations such as any historical deficiencies or difficulties demonstrated with respect to a site's current use. The 'history' of a site might well extend to any valid planning factor that arises from relevant events of the past in respect of a site and its future use or development.
67Further, the Tribunal's own researches, notified to the parties during the course of the hearing, produced some relevant and helpful observations from the Victorian Civil and Administrative Tribunal concerning what is often effectively the sequential or complementary comparative task involved. That is, after considering the 'history' of the site (including its context) it is then permissible to consider the ameliorating effects of what is proposed, and any benefits and, importantly, the practical outcome.
68In Cufari and Mildura Rural City Council [2005] VCAT 1979 (sub nom Freeman and Freeman Land Surveyors v Mildura Rural City Council (2005) 21 VPR 88) (Freeman Surveyors) the Tribunal was dealing with a consolidation and subdivision proposal advanced upon the basis of 'net benefit'. Senior Member Liston noted, as valid planning considerations, the following matters, at [7] [8] (original emphasis):
… The extent of inappropriate subdivision throughout the irrigation districts is already high, measures which are themselves not perfect, but ameliorate these impacts, are to be encouraged. The important issue is to ensure that there is a real net benefit. Another important issue is practicality. Does the proposed arrangement lead to a practical outcome[?]
(Emphasis added)

The Tribunal finds that on the evidence before it in this review the history of the site and the potential net benefit in terms of reduced bushfire risk are relevant considerations to be weighed in coming to the correct and preferable decision.
There is considerable case law in terms of the principles to be applied in the exercise of discretion in the application of policy.
In Tah Land at [37] the Supreme Court found:
It is not in contest that the principles of law principally relevant to ground 1 are to be found in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 [24] [26] (Barker J), referring to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68, among other authorities:
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by [sic] why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach[.]
(Emphasis added)
An inflexible approach to the application of a policy without considering site specific factors would involve an error of law: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] [28]; Marshall & Anor v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 at [41].
In Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198 the Tribunal stated at [34]:
… an adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policy should not be applied: Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24][.]
In Adbooth Pty Ltd and City of Perth [2007] WASAT 76 the Tribunal made the following observations at [209]:
As Barker J held in Clive Elliott Jennings & Co Pty Ltd v WesternAustralian Planning Commission (2002) 122 LGERA 433 at [24], 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'[.]
In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) the Supreme Court found at [179] [182] as follows:
179The starting point for determining the meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
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'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182.While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. 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. A broad range of considerations may be relevant in that context.
(Emphasis added)
As the Tribunal said in Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019]WASAT15 at [99] (Bestry):
In the exercise of planning discretion, the Tribunal is guided by the planning principles that find expression in the policies forming the planning framework, but will depart from the application of those planning principles where there is a cogent reason to do so in the circumstances of the case[.]
(See also Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019]WASAT59)
In the context of the current review the Tribunal finds that while the proposed development clearly does not comply with the requirements of SPP 3.7, in that it infringes both cl 6.6.2 of SPP 3.7 and a number of the provisions of the associated Guidelines, the application of condition (a)(i) would clearly infringe both the intent (cl 2) and an objective (cl 5.2) of the policy.
This flows from the fact that the application of condition (a)(i) by effectively maintaining substantive existing bushfire risks on the subject site would neither 'reduce the impact of bushfire on property' (cl 2) or '[r]educe vulnerability to bushfire through the identification and consideration of bushfire risks' (cl 5.2).
The Tribunal has in a number of reviews dealt specifically with the application of discretion in relation to the application of SPP 3.7 and the Guidelines. In Boynton and Western Australian Planning Commission [2018] WASAT 60 at [59] (Boynton) the Tribunal found:
The purpose and objectives of SPP 3.7 are important ones. The potentially devastating consequences of bushfire on property and people have been seen a number of times in the recent past in Western Australia. The weight that should be given to this policy, which seeks to ensure planning decisions take bushfire risk and mitigation into account, should generally be significant.
In this context it would be with some circumspection that the Tribunal should consider departing from the policy.
An aspect of this circumspection arises from the precautionary principle set out in cl 6.11 of SPP 3.7. It is however noted that cl 6.11 suggests that proposals which are unable to satisfy the performance principles of the relevant policy measures may not be approved. (Emphasis added) In addition the footnote to this clause 'recognises that each site is to be assessed on merit and that the determination of an application may involve the use of discretion'.
The definition of 'precautionary principle' in SPP 3.7 reads as follows:
The presumption against approving further strategic planning proposals, subdivision and development applications or intensification of land uses, where there is a lack of certainty that the potential for significant adverse impacts can be adequately reduced or managed in the opinion of the decisionmaker.
(Emphasis added)
In Harmanis Holdings No. 2 Pty Ltd and Western Australian Planning Commission [2019] WASAT 43 (Harmanis), the Tribunal set out the principles to be applied in dealing with SPP 3.7 at [33],[63], [97], [99],[101],[122] and [123]:
33SPP 3.7 does not require that there be no increase at all in the threat of bushfire to people property or infrastructure. Rather, as is seen in cl 2 of SPP 3.7, the intention of the policy is to 'implement effective, riskbased land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure'.
(Emphasis added)
…
63.Clause 6.7 of SPP 3.7 provides:
Strategic planning proposals, subdivision or development applications which will result in the introduction or intensification of development or land use in an area that has or will, on completion, have an extreme BHL and/or BAL-40 or BAL-FZ will not be supported unless:
a)the proposal is considered to be minor development to which policy measure 6.7.1 applies; or
b)the proposal is considered to be unavoidable development to which policy measure 6.7.2 applies.
…
97How the bushfire protection criteria are to be read is explained in cl 4.5 of the Guidelines. Each of the four elements have an intent, acceptable solutions and a performance principle.
…
99The performance principle is a general statement of how best to achieve the intent of the element. Clause 4.5.2.2 of the Guidelines expands further in relation to the performance principles:
The performance principles have been designed so they may be used where a proposal cannot comply with the acceptable solution(s) or it may be inappropriate to do so, to achieve the intent of each element. … Performance principle based solution(s) propose an alternative to those set out in the acceptable solution(s); it is not a justification for noncompliance. … All performance principle-based solution(s) require discretion on the part of the decision-maker, informed by advice from the Department of Fire and Emergency Services …
To demonstrate compliance, the performance principle-based solution(s) must provide substantiated evidence and clearly demonstrate/document how the proposal, product, design or material can meet or exceed the intent and performance principle of the element, and more broadly, the objectives of the State planning policy. …
…
101At cl 4.5.2 of the Guidelines it is explained that:
For a proposal to be compliant with SPP 3.7, the intent of each element of the bushfire protection criteria, as listed in Appendix 4 of these Guidelines must be satisfied. To satisfy compliance with the 'intent', either the acceptable solutions or the performance principles must be demonstrated. …
…
122As the Tribunal has previously indicated, having regard to the principles enunciated in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119, SPP 3.7 and the Guidelines are policies that should be given considerable weight: Juran and City of Armadale [2018] WASAT 49. Having regard to the purpose and objectives of those policies, I am of the view that one should be slow to depart from those policies unless satisfied that good reason to depart exists.
123As indicated above, the respondent submits that the Tribunal should not be willing to rewrite policy by accepting different balances of risk than those contemplated by SPP 3.7 and the Guidelines. So much can be accepted. However, the Tribunal is required to determine whether there is a good reason to depart from policy in the circumstances of this case. I do not think it can be accepted that, simply because a proposal contemplates a solution that is not contemplated by the Guidelines the Tribunal cannot approve that proposal. To accept that proposition would amount to inflexibly applying policy.
(Emphasis added)
These are principles with which the Tribunal concurs.
State Planning Policy 1: State Planning Framework (SPP 1) sets out the key principles relating to environment, community, economy, infrastructure, regional development and governance which should guide the way in which future planning decisions are made.
Clause 4 of SPP 1 deals with the provisions of the framework and states that '[w]here there is a conflict between one provision of the Framework and another, the following rules of interpretation apply':
a)The provisions shall be liberally construed to avoid the conflict where the terms permit.
b)Provisions higher in the hierarchy generally prevail over provisions lower in the hierarchy.
c)Provisions which are more recent in time generally prevail over provisions less recent.
d)Provisions which address more specific issues generally prevail over provisions which are more general in scope.
e)Even in the event of a conflict, decisionmakers must turn their minds to all relevant provisions, although the above criteria may offer guidance in terms of applying appropriate weight or discretion.
In terms of the matters before it in this proceeding and in the application of SPP3.7 and the Guidelines there is clearly a tension between (b) and (d) of cl 4 of SPP 1.
Clause 3 of SPP 3.7 requires that the policy is to be read in conjunction with the supporting Guidelines. The Guidelines are specifically referenced in cl 6.4, cl 6.5 and cl 6.11 of SPP 3.7. Theseprovisions imply that the Guidelines, which clearly address more specific issues, should be given weight in any assessment under SPP3.7.
However, in the specific context of applying SPP 3.7 to the proposed development, there is no basis on which provisions lower in the hierarchy (the Guidelines) should necessarily prevail over provisions higher in the hierarchy (SPP 3.7).
The Tribunal therefore finds that the application of condition (a)(i) would constitute the inflexible application of SPP 3.7 and the Guidelines regardless of the merits of the particular case before it and, while in the exercise of discretion the planning principles identified as relevant to an application should not be lightly departed from, the deletion of condition (a)(i) would accord with both the intent and relevant objectives of SPP 3.7 (SPP 1, cl 5 'Governance' iii).
Therefore in the context of the evidence before it in this review, and given the exceptional circumstances of the case and the history of the site, there is a sound basis for departing from both cl 6.6.2 of SPP 3.7 and Element 1 and 2 of the Guidelines to consider extensions within the BALFZ and BAL40. Such a departure is clearly grounded in the planning principles established by the intent and objectives of the policy (Marshall). To do otherwise would constitute the inflexible application of the policy (Tah Land).
In addition the Tribunal finds that the proposed development, in that it reduces the bushfire risk on the subject site, complies with cl67(q) and cl 67(r) of the LPS Regulations.
In making these findings the Tribunal, having assessed the development application on its merits, and having established that the proposed development will reduce the bushfire risk on the subject site, finds that the exercise of discretion would not in this case infringe the precautionary principle set out in cl 6.11 of SPP 3.7.
For completeness the Tribunal notes that the planning experts spent some time in the hearing expressing conflicting views as to whether the proposed development constituted an intensification of the existing use on the site. Given the findings set out above it is unnecessary for the Tribunal to make a determination in that regard.

Width of the Perimeter Vehicle Access (PVA)

Considerable time in the hearing was taken up in considering the width of the PVA.
It is to be noted that in the hearing the applicant advised that should the width of the PVA in the view of the Tribunal be the determinative issue in the review it would be prepared to accept a condition requiring that the PVA was widened to 9 metres.
The issue of the appropriate width of the PVA raises two questions for the Tribunal in this review. The first relates to the provisions on which the parties seek to rely; the second to the merits review of the proposed development.

Relevant provisions

In regard to the first question the parties made reference to the Guidelines associated with SPP 3.7, the requirements for open space and vehicular access of the National Construction Code, and GL-11.
The National Construction Code constitutes a set of technical design and construction provisions for buildings applicable under separate legislation and does not fall within the ambit of matters to be considered in a review of a planning determination.
The coverage on access in the Guidelines is very general. Therelevant provisions are set out in Element 3 of the 'Bushfire Protection Criteria' and address fire service access routes (perimeter roads) within and around the edge of subdivision and related development.
Table 6 of the Guidelines establishes minimum trafficable surface for various categories of vehicular access. These provisions, with the exception of 4 meters for a private driveway, establish minimum widths of trafficable surfaces of 6 meters.
The access route on the northern side of the proposed development does not constitute a public road, cul-de-sac, private driveway or emergency access way. Moreover, while A3.7 of Element 3 addresses fire service access routes (perimeter roads), these are 'to provide access within and around the edge of the subdivision and related development'. While this provision does not apply directly in the circumstances of this review it establishes a benchmark which has some relevance in the matter before the Tribunal.
Importantly, the performance principle of the Guidelines for Element 3: Vehicular Access reads as follows:
P3
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.
(Emphasis added)
Finally, neither SPP 3.7 nor the Guidelines make provision for lateral clearances.
GL-11 establishes a minimum width of perimeter vehicular access for a large isolated building of 6 metres. The proposed development complies with this provision.
The provision of clause H of GL-11 deals with lateral clearance and requires that the distance between the PVA and the external wall of the building shall be not less than 2 metres and that a desired lateral clearance of 1 metre shall be required for fire appliance accessway between any object/encroachments. The outcome is illustrated in Figure 3a: 'Overhead and lateral clearance for Perimeter Vehicular Access' of GL-11.
It is to be noted that GL-11 does not explicitly clarify when the 9 metre lateral clearance requirement rather than the 6 metre PVA requirement would apply. The result of the application of the lateral clearance requirement in this proceeding effectively increases the required width of the PVA to 9 metres.
GL-11 is a guideline revised by DFES in May 2017. It is to be noted that GL-11 post-dates SPP 3.7 and the associated Guidelines.
Relevantly the purpose of GL-11 is stated as follows:
To provide guidance to building designers so that adequate access to and around developments is provided to meet Department of Fire and Emergency Services (DFES) operational requirements, requirements of the Building Code of Australia and applicable Australian Standards.
(Emphasis added)

In addition GL-11 references relevant legislation as the Building Act 2011 and the Building Regulations 2012 (as amended). Thus on its face GL-11 does not purport to address planning issues.
In addition GL-11 appears to be seeking to introduce provisions for overall and lateral clearances on PVAs; in doing so it goes beyond the matters addressed in both SPP 3.7 and the associated Guidelines.
Therefore to the degree that the GL-11 has no apparent standing in the planning jurisdiction, purports to apply standards which apparently seek to go beyond the general principles established by SPP 3.7 and the associated Guidelines, and post-dates the introduction of both SPP 3.7 and the Guidelines, it can be according limited weight in this review.

The evidence

The currently proposed access route along the northern boundary, a length of approximately 118 metres, is 6.765 meters at its narrowest point. The length below 7 meters, which would preclude two fire appliances passing each other, is approximately 30 metres. The length below the 9 metres which would comply with GL-11 by providing overhead and lateral clearance for a fire appliance to operate within a safe working limits is approximately 55 metres.
The practical issue raised is the potential need to locate a fire appliance in this area. It was noted that the location of a fire appliance in the PVA to fight a fire would effectively block the PVA to any additional vehicles.
In regard to the potential requirement to locate a fire appliance in this area Mr Scott and Mr Rowe questioned the need given that it would place the appliance between the two identified fire risks of the warehouse and the bush on the reserve to the north.
Mr Parker argued that:
The minimum perimeter access meeting DFES operational requirements for the proposed Bunnings extension is to be a minimum of 9 metres wide with a minimum (being a 6m hardstand 2m from the building and 1m from the external wall) with an inner turning radius of 8.5m and 14m outer turning radius; applicable where the perimeter access is located between a building and obstructions (such as a fence) on the far side of the access, DFES GL-11 clause A and clause H.
(WS para 43)
Mr Kuchel argued that:
I recommend … should the Proposed Development be granted approval to proceed … the Proposed Development provides for adequate large vehicle access … to comply with DFES Built Environment Branch operational guideline GL 11 – DFES Site Planning and Fire Appliances Specifications[.]
(WS para 31)
While Mr Kuchel did not specify what he regarded as the relevant dimension to be applied in dealing with access to, and mobility around, the incident site he noted that 'fires in tiltup construction contain an added risk of the outer walls collapsing outward, as the steel roof structures expand under heat' (WS para 21(h)(i)).
In contrast to the bushfire experts of the applicant, both Mr Parker and Mr Kuchel argued that the need could possibly arise to locate a fire appliance in the PVA on the northern side of the building.
However, given Mr Kuchel's view that 'the greatest risk to the community will arise from the unrestrained propagation of fire within the building(s)' (WS para 28), this suggests that, in spite of his oral evidence at the hearing, should this risk eventuate the northern access route may not be an appropriate location to station a fire appliance.
It was Ms Holm's evidence that one cannot enter a BAL-40 zone to fight a fire. In fact the revised BAL contours under the provisions of AS 3959: 2018, which were in evidence, established that this portion of the PVA fell within the BAL-FZ contour.
Tribunal findings
Given the evidence before it on this question the Tribunal finds that the proposed PVA is acceptable for the following reasons:
•Mr Parker accepts that the stored flammable materials on the site currently restricts external access to emergency services around the building (WS para 26);
•The Tribunal has found that GL-11 can be according limited weight in this review;
•However, the proposed development in any event meets the minimum width of perimeter vehicle access for large isolated buildings established in GL-11;
•In addition, a reasonable component of the northern PVA does meet the requirement for a 9 metre provision for overall and lateral clearances set out in GL-11;
•Importantly, two of the bushfire experts question the need to locate a fire appliance in the northern PVA in the first place and the other two place the need at no more than possibly arising;
•In this regard, the Tribunal prefers the evidence of Mr Rowe and Mr Scott. Should a fire originate in the reserve to the north, the affected area would be within the BAL-40 zone which Ms Holm considered would not be an appropriate place from which to fight a fire. Should a fire occur within the warehouse, the risk identified by Mr Kuchel of the wall collapsing outward would result in considerable risk attaching to the location of a fire appliance in this locality.

Issue: The Bushfire Management Plan and Emergency Evacuation Plan

Conditions (b), (c) and (d) require the applicant to prepare further documentation pertaining to the proposed development.
Condition (b) requires that a revised BMP be prepared, condition (c) requires that a Bushfire Risk Management Plan be prepared while condition (d) requires the preparation of a revised BEP. Each of these documents are to be to the City's satisfaction and thereafter implemented.
Mr Parker argued conditions (c) and (d) should be imposed. Thisis based on his views that condition (c) would ensure the development and maintenance of a Bushfire Risk Management Plan to manage the storage of flammable materials (WS para 117) and that the Emergency Evacuation Plan provided uses a template more suitable to a residential dwelling or small business (WS para 102). Mr Parker provided no comment on condition (b).
Mr Kuchel argued both conditions (b) and c) should be imposed (WS para 33). He argued this would provide for the preparation of plans which would mitigate the impact of any potential fire. In addition Mr Kuchel also argued that condition (d) should be imposed as the current Emergency Evacuation Plan is, in his view, too generic.
While Mr Rowe did not explicitly address conditions (b), (c) or (d) he did argue the following conditions should be applied to any approval:
a)The building is to be constructed and maintained to a Fire Resistance Level of 90/90/90 (as offered by the applicant).
b)A 6 metre wide vehicle accessway access is to be provided around the perimeter of the building. The access way is to be maintained as a 6 metre wide cleared space at all times. No portion of the accessway is to be used for the storage of materials. (WS para 82)
In addition he argued that the conditions recommended in the BMP should be applied and the emergency facilities plan be amended to preclude the storage or display of combustible materials to the north of the proposed development and, in the event of a bushfire, all external doors are to be closed while the bushfire is flaming and embers are impacting the site.
Mr Scott provided no comment on conditions (b), (c) and (d).

Revised Bushfire Management Plan

It is noted that at the hearing the applicant advised it was prepared to accept a condition requiring a revised BMP.
Clause 6.6.1 of SPP 3.7 requires that high risk land uses between BAL12.5 to BAL-29 will not be supported unless they are accompanied by a BMP. This requirement is supported by cl 5.6 of the Guidelines.
Given that a BMP was provided with the application this requirement is not in contest between the parties. The issue is whether the current BMP is adequate.
The initial position of the respondent was that the BMP required amendment to address condition (a). Given the findings of the Tribunal in regard to condition (a) the logic of this position falls away.
However, this question arises from the joint witness statement of the bushfire experts. The experts agree that the BMP is based on the BAL determination methodology of AS 3959:2009 and that determinations from 1 May 2019 may require AS 3959:2018 to be applied (JWS Issue 3 Agreed Matter 3).
The bushfire experts also agreed that should AS 3959:2018 apply the area of vegetation currently classed as Class B Woodland will need to be reassessed and this will require changes to the BMP and BALContour Map (JWS Issue 3 Agreed Matter 4).
In the joint witness statement of the bushfire experts Mr Rowe expressed the personal view that 'A SAT determination is made upon the policy at the time of the decision. The classification of vegetation should be made by the current standard which is AS 3958:2018” (JWSpara 13).
Presumably the reference to AS 3958:2018 was simply a typographic error and Mr Rowe intended to refer to AS 3959:2018.
Section 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) reads as follows:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon review.
In Miller and City of Stirling [2007] WASAT 247 the Tribunal found at [35] as follows:
It is well established in Australian planning law that a development or subdivision application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decision maker or on review/appeal by a court or a tribunal such as SAT.
More recently the application of s 27 of the SAT Act was addressed in some detail by the Court of Appeal in Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018]WASCA213 at [102] [104] as follows:
102In the present case, the respondent's right was conferred by s 252(1) of the Planning Act. That right was to a 'review, in accordance with [pt 14], of the responsible authority's decision'. The responsible authority's decision, which was the subject of that review, was the result of the exercise of the power to grant (either conditionally or unconditionally) or refuse to grant development approval under cl 68(2) of the Deemed Provisions. That power was, under cl 67(a) of the Deemed Provisions, to be exercised having due regard to the 'aims and provisions of this Scheme'. Section 241(1) of the Planning Act required the Tribunal, in determining an application in accordance with pt 14, to have due regard to 'relevant planning considerations', which must include the relevant provisions of a local planning scheme. Section 27 of the SAT Act provided for the review to be conducted by way of a hearing de novo, and identified the purpose of the review as being to produce the correct and preferable decision at the time of the decision upon the review. For these purposes, the 'time of the decision upon the review' is the time of the Tribunal's decision.
103The reference to the 'provisions of this Scheme' in cl 11.2(a) of the Scheme is to the provisions of the Scheme in force at the time that the decision to grant or refuse development approval under cl 11.3 is made. Those provisions, rather than the provisions of the Scheme as it stood prior to the Scheme Amendment, were the 'provisions of this Scheme' to which the Tribunal was to have regard when it made the Final Decision.
104Having regard to these provisions, the right which the respondent had was not a right to have its application for development approval determined by reference to the provisions of the Scheme as they stood at the date that the review application was made. Rather, the right was to have the Tribunal consider whether, at the time of the Tribunal's decision, the correct and preferable decision, having due regard to the provisions of the Scheme then in force, was to grant (conditionally or unconditionally) or refuse development approval for the proposed development.
(Emphasis added)
The clear principle to be drawn in the current review is that Tribunal is required to have due regard to the relevant provisions currently in force.
AS 3959:2018 became operational on 1 May 2019 and it should be applied.
For this reason the Tribunal finds that the BMP should be amended to comply with AS 3959: 2018 and condition (b) should stand.

Bushfire Risk Management Plan

It is noted that at the hearing the applicant advised it was prepared to accept a condition requiring a Bushfire Risk Management Plan.
Clause 6.6.1 of SPP 3.7 requires that high risk land uses between BAL12.5 to BAL-29 will not be supported unless they are accompanied by a BMP. In addition, the same clause requires that development applications should include an emergency evacuation plan for proposed occupants and/or a risk management plan for any flammable on-site hazards.
Clause 5.6 of the Guidelines similarly requires that high-risk land uses in bushfire prone areas should be supported by a risk management plan that addresses bushfire risk management measures for any flammable on-site hazards.
The Tribunal finds that if these provisions apply to uses between BAL12.5 to BAL-29 they should logically apply to proposed developments within BAL-40 and BAL-FZ zones.
It is not contested that the proposed land use constitutes a high risk land use (JWS Issue 5 Agreed Matter 3).
The evidence provided by the bushfire experts establishes that there are 'flammable onsite hazards'. (WS Scott para 91, WS Rowe para 56(d) and 60, WS Parker para16, WS Kuchel para 21(a)and 21(d)(ii))
No evidence was provided establishing a cogent reason to depart from the policy provisions and the Tribunal therefore finds that Condition (c) should stand.

Revised Bushfire Evacuation (Response) Plan

It is noted that at the hearing the applicant advised it questioned the need for a revised BEP.
Clause 6.6.1 of SPP 3.7 requires that high risk land uses between BAL12.5 to BAL-29 should include an emergency evacuation plan for proposed occupants and/or a risk management plan for any flammable on-site hazards.
The Tribunal finds that if this provision applies to uses between BAL12.5 to BAL-29 they should logically apply to proposed developments within BAL-40 and BAL-FZ zones.
The application for the proposed development included both BEP and a Site Emergency Management Guide.
In his witness statement Mr Parker addresses the matter of the requirement of a revised BEP in some detail (WS paras 100 -114). Essentially his concern is that the current BEP uses a template more suitable for a residential dwelling or small business and does not address the more complicated evacuation needs of 250 visitors plus staff (WS para 102).
Mr Parker provides a detailed evaluation of what he considers the shortfalls of the current BEP (WS para 103) and also suggests that some of the issues could be addressed by the BEP referencing the Site Emergency Management Guide (WS para 114).
Mr Kuchel also raises concerns with the BEP (WS para 34). Hissubstantive issue is the limited modifications to a generic template which in his view renders the BEP too generic to be useful in the event (or prior to) an emergency.
Given the size of the expanded proposed development and the potential number of people on site the Tribunal is persuaded by concerns raised by the bushfire experts and is of the view that a revised BEP should be required.

Water supply and sprinklers

In his witness statement Mr Kuchel raised concerns over both the current emergency water supply (hydrant flow and hydrant coverage) and internal sprinkler system and associated booster assembly which do not meet current building standards (WS para 21(d)iv and v).
The basis for these concerns arose from a review of the current premises by the DFES Built Environment Branch (WS Kuchel CJK 7). This review did suggest that the sprinkler system could be improved with the proposed extensions.
While these are clearly relevant issues they fall outside the purview of the planning matters before the Tribunal in this review and would logically be dealt with by the local authority in dealing with the issue of a building licence.

Conclusions

In Re Centro Properties Ltd [2011] NSWSC 1465; (2011) 86 ACSR 584, Barrett J reiterated the view that there was force in the observations of Finkelstein J that 'Public policy' is 'a very unruly horse and once you get astride it you never know where it will carry you' (Richardson v Mellish [1824] EngR 715; (1824) 2 Bing 229; 130 ER 294 at 303 per Burrough J) (See also Woodham v Roberts Limited [2010] TASSC 31 at 13 and Fitzgerald v FJ Leonhardt (1997) 189 CLR 215 at 248).
This view is of some relevance in the matters contested by the parties in this proceeding which relate to the application of SPP 3.7 and the associated Guidelines.
More specifically, the question for the Tribunal is whether a number of conditions addressing bushfires, attached to the approval of the respondent on 6 August 2018, ought to be imposed.
In the context of the evidence before it in this review, the Tribunal found that there is a sound basis for departing from both cl 6.6.2 of SPP 3.7 and Element 1 and 2 of the Guidelines and the deletion of condition (a)(i) would accord with both the intent and relevant objectives of SPP 3.7.
This finding was premised on the evidence which established that both the bushfire and planning experts for the respondent had inflexibly applied SPP 3.7 and the associated Guidelines in a manner which infringed the principles established in Tah Land, Bestry and Harmanis.
In regard to the remaining conditions in contest in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia at [57], 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 (the Newbury test):
… 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.
In order to avoid any doubt and based on the evidence before it in this review the Tribunal finds that each of conditions (b), (c) and (d), in seeking to implement a planning policy whose scope is ascertained by reference to legislation that confers planning functions on the authority, or the Tribunal standing in its shoes, meet the first Newbury test.
In addition in seeking to ensure planning decisions take bushfire risk and mitigation into account (Boynton) the Tribunal finds that each of the three conditions meet the second Newbury test.
In regard to the third Newbury test, unreasonableness is terminology derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury).
Gageler J in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [108], made the following observation on 'judging unreasonableness' in regards to Wednesbury unreasonableness:
Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.
The plurality of the High Court in Li at [76] stated that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification'.

In Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59 the Tribunal found at [290]:
Sanders v City of South Perth involved an application for judicial review challenging the validity of the grant of development approval for the construction of a house. The case did not concern a challenge to the validity of a condition of subdivision or development approval and did not consider the formulation of the third Newbury test in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; (2004) 137 LGERA 232 at [57] (McHugh J) and [155] (Callinan J) or as it was endorsed by the Court of Appeal in Reid v Western Australian Planning Commission [2016] WASCA 181. However, given that the High Court authorities referred to by the Chief Justice postdate Western Australian Planning Commission v Temwood Holdings Pty Ltd, it would seem that the third Newbury test involves 'legal unreasonableness' in the sense discussed in the more recent High Court decisions. A condition of subdivision or development approval will therefore be invalid under the third Newbury test, as understood consistently with the judicial review ground of 'legal unreasonableness', if the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power to impose conditions of planning approval, in the particular circumstances, and thus an inference of legal error may objectively be drawn.
(Emphasis added)
In this regard the Tribunal finds that condition (b), (c) and (d) in seeking to apply relevant policy provisions appropriate in the context of the evidence before the Tribunal would not constitute 'legalunreasonableness' and meet the third Newbury test.
In addition, Mr Parker argued that the construction methods proposed would not be enforceable as a condition of development approval. This is based on the fact that the bushfire construction provisions of the Building Code do not apply to Class 4 to Class 9 buildings.
The Tribunal rejects this contention. Clause 78E(i) of the LPS Regulations requires the local government, or the Tribunal in its shoes, to have regard to the bushfire construction requirements of the Building Code. In addition clause 5.8.3 of the appendix to the Guidelines reads as follows:
In bushfire construction provisions of the Building Code of Australia do not apply to Class 4 to Class 9 buildings. In these instances the applicant has the discretion to utilise any or all of the elements of AS 3959 in the construction of the building they deem appropriate.
The application the subject of review has proposed to use a number of elements of AS 3959 in the construction of the proposed development and it is appropriate to attach a further condition to the planning approval to ensure those proposals are implemented. Such a condition would, in the Tribunal's view, meet each of the three Newbury tests.
Finally, two further issues arose in regards to the PVA. The first is that the current gates on the northern PVA are approximately 4.58metres wide and the second is that a GI canopy is proposed over the PVA adjacent to the Proposed Goods Inwards area in the service laneway on the eastern side of the building.
The applicant advised that it was content for conditions requiring that any gates on the PVA shall have a minimum openable width of 6 metres and that the GI canopy be deleted.

Orders

For the reasons set out above the Tribunal orders:
1.The application for review is allowed in part.
2. Condition (a)(i) of the approval of the respondent made on 6 August 2018 is deleted.
3.Conditions (b), (c) and (d) of the approval of the respondent made on 6 August 2018 are affirmed.
4.Further conditions are to be attached to the approval of the respondent made on 6 August 2018 to read as follows:
A.The proposed additions to the existing warehouse are to comply with AS 3959 Section 9 and in particular:
a.External walls are to be precast panels with fire rated sealed joints to achieve a 90/90/90 FRL;
b.And doors and windows are to be designed and treated in accordance with AS 3959;
c.The roof and any roof penetrations are to comply with AS 3959;
d.Any evaporative air cooling units on the proposed extension are to be positioned to be subject to BAL-19 or less; and
e.Any existing evaporative air cooling units are to be fitted with ember protection screens (mesh aperture max 2mm) and roof penetrations sealed.

B.The GI canopy adjacent to the Proposed Goods Inwards area in the service laneway on the eastern side of the building shall be deleted.
C.Any gates on the PVA shall have a minimum openable width of 6 metres.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR P DE VILLIERS, MEMBER
26 NOVEMBER 2019