CANAL ROCKS PTY LTD and SHIRE OF BUSSELTON
[2006] WASAT 211
•28 JULY 2006
CANAL ROCKS PTY LTD and SHIRE OF BUSSELTON [2006] WASAT 211
| Link to Appeal : |
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| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 211 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:266/2003 | 13 & 14 JUNE 2006 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MR P McNAB (MEMBER) MR J ADDERLEY (SESSIONAL MEMBER) | 28/07/06 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed as Tribunal lacked jurisdiction to entertain application | ||
| A | |||
| PDF Version |
| Parties: | CANAL ROCKS PTY LTD SHIRE OF BUSSELTON |
Catchwords: | Planning and development Whether jurisdiction in Tribunal to consider review proceedings Whether "deemed refusal" of application for planning consent by respondent |
Legislation: | Planning and Development Act 2005 (WA), s 3(1)(c), s 245 Shire of Busselton District Town Planning Scheme No 20, cl 5(2), cl 11, cl 12, cl 13, cl 15, cl 16, cl 17, cl 19, cl 19(1), cl 19(2), cl 19(2)(a), cl 19(2)(b), cl 20, cl 21, cl 25, cl 25(2), cl 25(9), cl 25(10), cl 97, Part 3, Part 4 Statement of Planning Policy 6.1, the Leeuwin-Naturaliste Ridge Policy Town Planning and Development Act 1928 (WA), s 5AA Transfer of Land Act 1893 (WA) Western Australian Planning Commission Act 1985 (WA) |
Case References: | Canal Rocks and Shire of Busselton [2005] WASAT 56 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Nil |
Orders | 1. The application be dismissed.,2. The Tribunal declares that the application for planning consent in respect of the proposed development initially lodged with the Shire of Busselton remains to be determined by the Shire of Busselton in accordance with the Shire of Busselton District Town Planning Scheme No 20 on the basis explained in the reasons for decision of the State Administrative Tribunal, given on the same date as this order and declaration. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : CANAL ROCKS PTY LTD and SHIRE OF BUSSELTON [2006] WASAT 211 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MR P McNAB (MEMBER)
MR J ADDERLEY (SESSIONAL MEMBER)
- Applicant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Planning and development - Whether jurisdiction in Tribunal to consider review proceedings - Whether "deemed refusal" of application for planning consent by respondent
Legislation:
Planning and Development Act 2005 (WA), s 3(1)(c), s 245
(Page 2)
Shire of Busselton District Town Planning Scheme No 20, cl 5(2), cl 11, cl 12, cl 13, cl 15, cl 16, cl 17, cl 19, cl 19(1), cl 19(2), cl 19(2)(a), cl 19(2)(b), cl 20, cl 21, cl 25, cl 25(2), cl 25(9), cl 25(10), cl 97, Part 3, Part 4
Statement of Planning Policy 6.1, the Leeuwin-Naturaliste Ridge Policy
Town Planning and Development Act 1928 (WA), s 5AA
Transfer of Land Act 1893 (WA)
Western Australian Planning Commission Act 1985 (WA)
Result:
Application dismissed as Tribunal lacked jurisdiction to entertain application
Category: A
Representation:
Counsel:
Applicant : Mr P McQueen
Respondent : Mr LA Tsaknis
Solicitors:
Applicant : Lavan Legal
Respondent : Matthew Smith, Shire Solicitor
Case(s) referred to in decision(s):
Canal Rocks and Shire of Busselton [2005] WASAT 56
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 In September 1999, the Shire of Busselton District Town Planning Scheme Number 20 was gazetted and came into operation. Amongst its other effects, the Scheme changed the zoning and land use classification of Sussex Location 413 at Smiths Beach, which land was then and still is owned by the applicant.
2 Under the Scheme the eastern section of Sussex Location 413 - about 30 hectares - was zoned "Tourist". The western section - an area of about 10 hectares - was classified "reserved for recreation".
3 The zoning and land use classification of the Sussex Location 413 adopted by the Shire of Busselton following dealings between the Shire and the applicant and the applicant's town planning consultants.
4 The applicant proposes to develop the eastern 30 hectares for tourist related purposes. To this end, the applicant has lodged a Development Guide Plan with the Shire under the Scheme for the purpose of facilitating an extensive tourist development including a hotel.
5 In the meantime, the applicant lodged with the Shire an application for approval to build a single dwelling house on the western 10 hectares within the reserve for recreation. When the Shire did not grant its approval within 60 days of receipt of that application, the applicant took the view that the Shire was deemed to have refused the application pursuant to cl 15 of the Scheme. The applicant then applied to the State Administrative Tribunal for a review of the Shire's deemed refusal.
6 In the review proceedings before the Tribunal, the issues raised included:
• Whether approval under the Scheme is required for a single dwelling house on the land reserved for recreation.
• If approval is required for a single dwelling house on the Reserve, whether the applicant is required to submit to the Shire and have adopted under cl 25 of the Scheme a Development Guide Plan before the Shire can consider the application for planning consent.
• If approval is required under the Scheme, whether the proposed development should be considered of a "minor
- nature" so that the application for approval can be considered without the need to lodge a Development Guide Plan.
- • If approval is required under the Scheme, whether the dwelling house is "unlikely to prejudice the future development of the land or other land in the vicinity" for the purposes of cl 25(1) of the Scheme.
• If approval is required and a Development Guide Plan is not required, whether having regard to the merits of the development proposal the Tribunal should grant or refuse approval under the Scheme.
7 The Tribunal decided that, properly interpreted, the proposed development of a single dwelling house required approval under the Scheme.
8 In order to decide whether the applicant was required to lodge and have approved a Development Guide Plan under the Scheme, the Tribunal considered the questions whether the proposed development was of a "minor nature" for the purpose of cl 25(9) of the Scheme and whether the proposed dwelling house was "unlikely to prejudice the future development of the land or other land in the vicinity" for the purpose of cl 25(10) of the Scheme, the Tribunal considered evidence submitted by both parties concerning the environmental and planning significance of the locality in which the dwelling house was proposed to be constructed. The Tribunal also visited the locality and took a view of the construction site.
9 After the hearing was conducted, the Tribunal also received a submission from the Minister for Planning pursuant to s 245 of the Planning and Development Act 2005 (WA). The Tribunal also considered the Minister's submission as well as further submissions made by the applicant on matters raised in that submission.
10 The evidence before the Tribunal showed that the western section of Sussex Location 413 is currently in an extremely natural state, adjacent to the coast at Smiths Beach. The site for the proposed dwelling house was close to the coastline. If constructed, the dwelling house would provide spectacular views of that coastal environment. It would also be close to the Cape to Cape walking track - a track that runs from Cape Naturaliste to Cape Leeuwin - which is enjoyed by many walkers, residents of the locality and State and tourists to Western Australia.
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11 For all the expert witnesses called by the parties at the hearing, and for the Tribunal, the key issue concerning the location of the proposed dwelling house centred on the visual impact it would have in that setting.
12 The Tribunal formed the view that once a person passes by the current tourist area at Smiths Beach and walks in a southerly direction or walks from the Canal Rocks area in a northerly direction towards Smiths Beach in the vicinity of the proposed development, while the environment and landscape is not "pristine" in botanical or other terms, it is "in very good condition" and very "naturalistic". It is part of a rugged coastline with an interesting ocean view, wave movement and waves crashing incessantly on offshore rocks. There are at different times of the year craft moored near Canal Rocks which can be viewed from the proposed development site. There is also an immediate granite heath environment in the vicinity of the proposed development and in the further distance, the thicker vegetation of the Leeuwin-Naturaliste Ridge National Park is evident. While two other houses could be seen, if one looks for them, they were not prominent in the closer view, only in the mid or longer distance landscape.
13 The Tribunal found that the proposed development would intrude upon the "wilderness-like experience" that currently exists in this particular locality and would significantly affect the current visual amenity of the immediate locality.
14 In light of this finding, the Tribunal found that the development proposed was likely to prejudice the future development of Sussex Location 413 as a whole and also likely to have an effect on the foreshore land in the vicinity, between Sussex Location 413 and the ocean.
15 The Tribunal also found that, by reason of the significant visual impacts likely to flow from the proposed development, the development could not be considered of a "minor nature" for the purposes of the Scheme.
16 As a result, the Tribunal concluded that the applicant was obliged to lodge a Development Guide Plan for adoption under the Scheme before the Shire could determine the application for approval of the proposed dwelling house.
17 In these circumstances, there had been no deemed refusal of the application for approval under the Scheme. As a result, the Tribunal did not have jurisdiction to entertain the application and to grant approval or refuse approval.
(Page 6)
18 The Tribunal explained that the consequence of its decision is that the application for planning consent made by the applicant to the Shire of Busselton remains pending before the Council until such time as a comprehensive Development Guide Plan for the whole of Sussex Location 413 has been endorsed by the Shire and the Western Australian Planning Commission. The Council cannot approve any development of the land, including the proposed development by way of a dwelling house on the western section of the land within the reserve for recreation, until such a Development Guide Plan is endorsed. The Tribunal made a declaration to that effect.
Issues
19 Put generally, the overarching issues in these review proceedings are:
• whether the applicant needs planning consent to build a single dwelling house on land that is reserved for recreation under the Shire of Busselton District Town Planning Scheme Number 20 (Scheme); land described as a portion of Sussex Location 413, Smiths Beach;
• if planning consent is required under the Scheme, whether the applicant is required to submit to the Shire of Busselton (Shire) and have adopted a Development Guide Plan under cl 25 of the Scheme (which provides for Development Investigation Areas) before the Council of the Shire is obliged to consider the application for planning consent, so making the review proceedings redundant;
• if planning consent is required for the proposed development and cl 25 of the Scheme does not operate to require the applicant to submit and have adopted a Development Guide Plan with the Shire under cl 25 of the Scheme - and so the application for planning consent can be treated as a deemed refusal under the Scheme - whether the Tribunal in these review proceedings should, having regard to the merits of the development proposal, grant or refuse planning consent.
Other related issues arise, as follows:
• whether cl 16 of the Scheme (which provides for an exemption in certain cases for a single lot dwelling)
- exempts the applicant from any requirement in the Scheme to obtain planning consent to the proposed development;
- • if clause 16 does not exempt the applicant from obtaining planning consent, whether cl 25(10) of the Scheme (which provides that in certain situations a dwelling house may be erected in a Development Investigation Area) exempts or has the effect of exempting the applicant from any requirements under the Scheme to obtain planning consent to the proposed development;
• whether the proposed development is of a "minor nature" for the purposes of cl 25(9) of the Scheme (which provides that in some cases works of a "minor" nature might be exempt) so that, if the proposed development is not exempt from planning consent, the Tribunal might approve the proposed development without the applicant having otherwise satisfied the requirement to lodge with the Shire and have adopted a Development Guide Plan in respect of the proposed development, as provided for by cl 25 of the Scheme;
• if the proposed development is not exempt from planning consent, and neither cl 25(10) nor cl 25(9) applies (effectively so as to remove any requirement for the applicant to lodge and have adopted a Development Guide Plan in accordance with cl 25 of the Scheme), whether the fact that a Development Guide Plan in respect of the proposed development has been lodged but not yet adopted pursuant to cl 25 of the Scheme means that the Council of the Shire cannot be deemed to have refused the application for the proposed development pursuant to cl 15 of the Scheme (which deals with deemed refusals), with the result that the Tribunal lacks jurisdiction to deal with the current application for review of the Shire's deemed refusal of the proposed development;
• if planning consent for the proposed development is required under the Scheme and if the review application in respect of the alleged deemed refusal of the Shire is otherwise competent, whether, having regard to the
- merits of the proposed development and taking into account all relevant provisions of the Scheme and other relevant planning instruments, planning consent for the proposed development should be granted or refused.
Facts
20 The land the subject of the review proceedings is Sussex Location 413, Smiths Beach Road, Yallingup (the land). It is 40.4686 hectares in area. It is located approximately 3 kilometres south of the Yallingup townsite, near Smiths Beach, and has a frontage to the coast.
21 The land abuts an unconstructed road Reserve to the south, with vacant Crown land to the west and north, on the coast, forming a foreshore reserve. Smiths Beach Road adjoins the land along the eastern boundary. The north-eastern portion of the land adjoins Lots 1 and 2 of Sussex Location 364 on its south and west boundary, lots which comprise a tourist development site currently under redevelopment. Immediately to the east of the land, on the opposite side of Smiths Beach Road, is another, smaller tourist accommodation development.
22 In the general vicinity of the land is Canal Rocks Road near to which are situated two houses, one at Lot 8 Canal Rocks Road and one at Lot 16 Whittle Road. Each house is at least partially visible in the distance from parts of the coastal foreshore reserve. A map showing the locality and some of the features described is attached to these reasons (Annexure 1). The site of the proposed dwelling house is marked *G on Annexure 1.
23 Sussex Location 413 has not yet been physically developed. The major sign of disturbance is a track that more or less follows the alignment of the unconstructed road reserve on the land and makes its way from Smiths Beach Road through the foreshore reserve to the coast where recreational pursuits, such as snorkelling, can be enjoyed in the near-shore waters.
24 The land is characterised by two major topographical components, being a broad ridgeline in the western sector which extends seaward from the southern boundary in a north-westerly direction, and a more moderately sloping part forming the eastern sector of the land behind the southern part of Smiths Beach.
25 The ridgeline in the western sector forms a headland with an elevation of approximately 58 m AHD, which protects the eastern sector of the land.
(Page 9)
26 Other land to the south and the upslope of the Sussex Location 413 is part of the Leeuwin-Naturaliste National Park and rises from 58m AHD to a maximum elevation of more than 125m AHD. Sussex Location 413 itself is generally covered with a mosaic of dense coastal vegetation of several vegetation community types. These vary from low woodlands of banksia peppermint; low open forest peppermint, jarrah and marri; to closed heath communities of Rottnest tea tree, chenyle honey myrtle, coastal sheoak and acacia species. The flora is constituted of many native species but also contains some introduced or exotic species. While the condition of the vegetation on the land is not "pristine" it is considered botanically to be in "very good" condition. The land also contains a number of fauna habitats, some of which are habitats that protects species; however none, apart from Baudin Cockatoo, have been recorded on the land.
27 The vegetation on the western sector of the land is principally characterised as "granite heath" and relatively few of the species of vegetation to be found more prolifically on the eastern sector are there to be found in the same abundance or size.
28 On the coastal foreshore reserve abutting the western boundary of the land - and indeed currently partly on the land - is to be found the Cape Naturaliste to Cape Leeuwin, or the "Cape to Cape" walking track.
29 The Cape to Cape track from near the southern end of Smiths Beach to Canal Rocks is particularly attractive as it affords those who walk it the opportunity to enjoy views or glimpses of the vegetation just described, as well as more distant views of the national park. More particularly, it provides walkers with the opportunity to observe the scenic, rocky coastline with its associated wave activity, such as water crashing on rocks, and more long-distance views of the coastline, both in a northerly direction along Smiths Beach and towards Cape Naturaliste and in a southerly direction towards the promontory of Canal Rocks.
30 As has been mentioned, part of the Cape to Cape walking track is on Sussex Location 413, although walkers would not necessarily be aware that they are walking on privately owned land at those points because there are no marked boundaries or other natural or physical indicators to draw any distinction between the Crown-owned foreshore area and the private land. In other words, there is an unbroken and consistent formation and appearance to the land and the vegetation in the vicinity once a person, walking south from Smiths Beach or north from the Canal
(Page 10)
- Rocks direction, climbs the rocky portions of the track and takes in the natural vegetation and scenic, coastal views.
31 The applicant proposes to build a dwelling house on Sussex Location 413 at a point relatively close to the existing Cape to Cape walking track. The positioning of the proposed development is such that it would meet the description of a "high amenity" dwelling development on the land - as the town planner called by the applicant to give evidence, described it. This means, in essence, that by reason of the quite superb and uninterrupted views that would be enjoyed in the general sweep of the coastline just described, from towards Cape Naturaliste to the north and to Canal Rocks to the south, a dwelling house on this particular site would have considerable market value.
32 The proposed location of the dwelling house would bring it to within about 120-160 metres of the existing Cape to Cape walking track with little vegetation to screen it from users of the Cape to Cape walking track. If constructed, the dwelling house would be the only house in close proximity to the Cape to Cape track from the point one enters the walking track at the southern end of Smiths Beach Road to the point at which one arrives in the Canal Rocks area. While the two other dwelling houses located on Canal Rocks Road and Whittle Road mentioned earlier are observable from the walking track at different points along that stretch of the track, each is some distance from the track and not in the near view. The worst that can be said is that each of those houses is in the mid view, whereas the proposed dwelling house is very much in the foreground of the view from relevant points on the walking track. Indeed, persons walking the Cape to Cape track from Smiths Beach to Canal Rocks, as the track is presently constructed, would have a close and continuing view of the proposed dwelling house in the foreground while they walked a distance of about 60 metres along the track.
33 The Cape to Cape track attracts many walkers during the course of the year, as do the surrounding natural attractions of the Leeuwin-Naturaliste Park and Canal Rocks. Leeuwin-Naturaliste National Park has an annual visitation of around 1.9 million persons, being one of the highest in the State. Canal Rocks and the surrounding coast, is a natural wonder and an important feature in the surrounding natural landscape. The Canal Rocks recreation site is a drawcard for international and local tourists with the Department of Conservation and Land Management (CALM) Vistate figures recording just over 140 000 visits in the 2004/05 financial year. As a comparison, Yanchep National Park - a little north of the Perth metropolitan area - records just over
(Page 11)
- 170 000 in the same year. Based on the Department's track use detectors, approximately 20 000 walkers were recorded using sections of the Cape to Cape walk track in 2005 (which is separate to visits to recreation sites that are associated with the track). While there are not precise statistics to show exactly how many persons in the course of a year walk the part of the track between Smiths Beach and Canal Rocks, it is accepted that many persons do and that this part of the track is an integral part of the whole of the track between Cape Naturaliste and Cape Leeuwin.
34 Not surprisingly, there is and has been for some years, considerable pressure for development of land along and near the south-western coast of Western Australia, including in the district of the Shire of Busselton. The Shire of Busselton District Town Planning Scheme No 20 endeavours in various ways to provide for the proper assessment of development proposals and the suitable control of development in areas such as Yallingup and Smiths Beach. Additionally, the Leeuwin-Naturaliste Ridge Policy which is Statement of Planning Policy 6.1 prepared under s 5AA of the Town Planning and Development Act 1928 (WA) and recognised under the terms of the new Planning and Development Act 2005 (WA), also endeavours to lay out basic policies and principles to help guide development of land in this general region.
35 Statement of Planning Policy 6.1 was gazetted on 18 September 1998. In a publication of the policy that contains forewords by both the Hon Graham Kierath MLA, Minister for Planning and Mr Simon Holthouse, Chairman Western Australian Planning Commission, the significance of this Statement of Planning Policy 6.1 is emphasised. The Minister makes the following observation:
"The many attributes of the Ridge area are well known to Western Australians and it has a growing reputation stretching beyond the State as an outstanding tourist destination, place of residence and source of high quality produce - from premium wines and award-winning cheeses to fine arts.
The area's conservation, landscape, agricultural, recreational and lifestyle values have, over the past two decades, experienced considerable change as a result of an influx of holiday-makers and other tourists and many new residents. Both population growth and visitation rates in the Shires of Busselton and Augusta/Margaret River are consistently amongst the highest in the State.
(Page 12)
- With this in mind the challenge facing the Leeuwin-Naturaliste Ridge area is to ensure this growth can be managed to ensure minimal adverse impacts on the environment or social values of the area whilst not hampering the benefits that such growth provides. To achieve this, a higher order planning instrument was required at the regional level to provide clear direction on future land use for the area."
36 To similar effect, Mr Holthouse notes that:
"The Leeuwin-Naturaliste Ridge is a 'must see' destination for visitors from outside Western Australia as well as a popular holiday destination for Western Australians. As well, more people want to move into the region to raise families, to work or to retire in such a well-favoured location."
37 The applicant, understanding this land development, environmental and economic and social context, has proposed a form of development of the dwelling house that it believes, on professional advice, will satisfy the policies and principles and other criteria evident in the Shire's Scheme and the Statement of Planning Policy 6.1 and other relevant planning instruments. To that end, the applicant proposes to construct a single storey dwelling, utilising appropriate non-reflective materials and a design, including roofline, that is likely to draw less attention from passers-by than might other possible built forms. Those responsible for the design of the proposed development have taken care to minimise, as far as they have been able, the obviousness of the proposed development on the western sector of the land. While some slashing and thinning of vegetation in the immediate vicinity of the dwelling house would be required for fire management purposes, the applicant does not propose to introduce exotic species of vegetation and, indeed, proposes that there be some vegetation introduced by way of screening on the southwest aspect of the development to minimise the views of the house from vantage points, such as Canal Rocks.
38 One unusual aspect of the land and the development proposed, is that the portion of it upon which the applicant proposes to build the dwelling house - an area of about 10 hectares - is currently a "reserve for recreation" under the Shire's Scheme, with the balance - about 30 hectares - being zoned "Tourist". Currently, the land is unsubdivided and there is no current proposal for its subdivision. The overall development of the land, particularly the eastern sector which is zoned "Tourist", seems still to be in the more formative stages, although it has been the subject of
(Page 13)
- discussions and dealings between the Shire and the applicant over a number of years and is currently the subject of a draft Development Guide Plan lodged with the Shire under cl 25 of the Scheme - though currently deferred.
39 The whole of Sussex Location 413 - both the eastern sector zoned Tourist and the western sector that is reserved for recreation - is shown on the Scheme Map as within a Landscape Value Area and a Development Investigation Area.
40 The current Reserve status and Tourist zoning of the land came about with the gazettal of the Shire of Busselton Town District Planning Scheme No 20 on 7 September 1999. Naturally enough the question of what land development status the land should have was the subject of consideration both by the applicant and the Shire prior to the making of the Scheme. By a submission dated 15 October 1997 (including supporting concept plans), Chappell and Lambert Planning Consultants presented an "amended submission" on the proposed Scheme on behalf of the applicant in place of an initial submission dated 1 October 1997. In the amended submission, the planning consultants stated:
"Rather than retain the 8.25 hectare 'balance of title' within the Agricultural Zone as proposed in our initial submission, we acknowledge that given its Principal Ridge Protection classification in the Leeuwin Naturaliste Ridge Report and commitments given to Council and the Western Australian Planning Commission, it is more appropriate as part of the development of Location 413 and the zoning proposal that the 8.25 hectares be included within the 'Conservation' zone of the Scheme. This of course, is on the proviso that the balance of the property is included in the 'Tourist' zone as per this submission."
41 The planning consultants went on in the submission to note the nature of the lengthy process that had culminated in the production of the Development Guide Plan which by earlier that year had received "general support from the planners from both the Shire of Busselton and the Western Australian Planning Commission (Planning Commission), as the broad land use framework upon which a more refined concept plan could be produced". A copy of the original development guide (Plan No 1) was attached, so was a revised Development Guide Plan that supported a submission to the Planning Commission on the Leeuwin Naturaliste Report. A further revised plan (No 3) prepared by the planning
(Page 14)
- consultants following their recent meetings with the Planning Commission and the Shire of Busselton officers, which was said to constitute a "further refinement on the previous two concepts", was also attached to the submission. The submission with the attached Development Guide Plans effectively propose that the area currently in Reserve status should be zoned "Conservation" under the Scheme. The latest revised Development Guide Plan attached to the submission showed extensive tourist development on the eastern sector including a hotel. It also included within the eastern sector a "public open space" allocation of 1.75 hectares and a "balance of title" - which effectively constituted the majority of the western sector of the land - of 8.25 hectares. No form of development was depicted on the third of the revised Development Guide Plans as submitted by the planning consultants. The second, revised development concept plans attached to the planning consultant's submission identified the "balance of title" area as "proposed additional land for coastal Reserve and sewerage buffer". The first Development Guide Plan attached marked the same area as "coastal park/sewerage treatment site buffer site".
42 In the event, the Shire appears to have determined that the "balance of title" area and the "public open space" area should not appear that way in the Scheme but rather should be combined effectively to constitute a "Reserve for recreation". Thus, the particular proposal that the major portion of the western sector of Sussex Location 413 should be within a Conservation zone under the Scheme was not adopted by the Council, though on the face of it something similar in intent was adopted by the Council.
43 What can be said on the basis of the information before the Tribunal is that the Council of the Shire appears to have given the western sector of the land a land use classification that it considered to be consistent with the submission lodged on behalf of the applicant by Chappell and Lambert on 15 October 1997.
44 The current position as a result of the zoning and land use classification system put in place by the Shire of Busselton District Town Planning Scheme No 20 when it was gazetted, was that the eastern sector of the applicant's land can be used for "Tourist" purposes, including some residential use, and the western portion became "reserved for recreation" under the Scheme.
45 The applicant has now lodged a Development Guide Plan with the Shire, apparently in respect of the whole of the land but particularly to
(Page 15)
- guide the development of the Tourist zone in the eastern sector. The Tribunal was informed at the hearing that this Development Guide Plan is currently "deferred".
46 In this particular planning context, the applicant has proposed, prior to any approval of development on the eastern sector of the land in the Tourist zone, that a single dwelling house be constructed within the Reserve area in the western sector, in the manner proposed.
Planning controls under the Scheme
47 The Shire of Busselton District Town Planning Scheme No 20 controls development in the following way:
• Under cl 97 no person shall carry out any development or use any land or any building or structure, otherwise than in accordance with the provisions of the Scheme.
• By cl 20 dealing with classification, the Scheme creates 12 zones and 8 areas. The zones include Tourist. The areas include Landscape Value and Development Investigation. The various zones and areas are delineated and coloured on the Scheme Map according to the reference appended.
• By cl 21, the objectives and policies of a zone are set out in Table 1 and in Table 2. Except as otherwise provided by the Scheme, the use, if any, which may be carried out without planning consent (P use), only with planning consent in a specific zone (AA), or only with planning consent issued after public advertising of the proposal, pursuant to cl 12 in a specific zone (SA) are set out.
• By cl 17, land shown as "Scheme Reserves" on the Scheme Map is land reserved under the Scheme for the purposes shown on the Scheme Map.
• By cl 19, no person shall on a Scheme Reserve, without the approval of the Council amongst other things, construct any building. By cl 19(2) the Council may grant its approval upon such conditions as it thinks fit and where an application for planning consent is made with respect to land within a Reserve, the Council "shall have regard to the ultimate purposes intended for the Reserve".
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- • Clause 25 provides in sub-clause (2), but subject to sub-clause (9), that where land is identified on the Scheme Map as being within a Development Investigation Area, the Council shall require the rezoning of the land consistent with the proposed uses and the preparation of a comprehensive Development Guide Plan for the land and the endorsement of the Plan by it and the Western Australian Planning Commission prior to approving any sub-division or development of the land.
• Clause 25(9) provides that notwithstanding the foregoing (which is plainly a reference to what precedes it in cl 25) the Council may approve any development in a manner consistent with the underlying zone, without requiring a Development Guide Plan where, in the opinion of the Council, such development is of a "minor nature" and will not adversely affect the future subdivision or development of the land within the zone.
• Clause 25(10) provides that a "dwelling house" may be erected on an existing allotment of land within a Development Investigation Area where the Council is satisfied that the siting of the dwelling house is "unlikely to prejudice the future development of the land or other land in the vicinity".
• Clause 11 specifies how an application for planning consent is to be made, and cl 13 sets out the matters to be considered by the Council when it determines an application for planning consent, which matters include the following:
- The impact of that development on the environment and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm.
- The effect of that development on the landscape or scenic quality of the locality.
- Whether the land to which the application relates is unsuitable for that development by reason of its being, or being likely to be, subject to flooding, tidal
- inundation, subsidence, slip or bushfire or to any other risk.
- Whether adequate provision has been made for the landscaping of the land to which that application relates and whether any trees or other vegetation on the land should be preserved.
- • By cl 15, an application for planning approval shall be deemed to have been refused where a decision in respect of that application is not conveyed to the applicant by the Council within 60 days of the receipt of it by the Council, or within such further time as agreed in writing between the applicant and the Council.
• Clause 16 provides an exemption from planning consent for the "erection on a lot of a single house" except where, amongst other things:
"(d) the development is inconsistent with any other provision of the Scheme."
48 As explained, the applicant proposes a dwelling house development on a site within that portion of the land which is reserved for recreation. Thus, the site upon which the development is proposed is not within any zone under the Scheme although it is within a Landscape Value Area and a Development Investigation Area, as delineated on the Scheme Map.
49 There is no difficulty in planning terms in a portion of land not being zoned but reserved under the Scheme. The Scheme expressly provides for zoning, as we have seen, under Part 4 cl 20, and for reservation as a separate process under Part 3 cl 17. Depending on the way in which the land is affected by the Scheme, different development control regimes will apply.
50 Because the western portion of the land upon which the development is proposed is not within any relevant zone, there is nothing in the Scheme which, by virtue of Table 1 or Table 2 referred to in cl 21, provides for the development to be carried out without planning consent as a P use; or only with planning consent, as an AA use; or only with planning consent issued after public advertising of the proposal, as an SA use. In short, the zoning
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- Tables 1 and 2 have no application in these circumstances where the development is proposed on a Reserve as established by the Scheme.
51 However, as we have also seen, cl 19 expressly prohibits a person on a Scheme Reserve without the approval of the Council from constructing any building (cl 19(1)). By cl 19(2)(a) the Council may, upon written application of the owner of the Scheme Reserve, grant its approval to such development, or notwithstanding cl 21 (which is the clause that refers to the zoning objectives, the zoning table and requirement for consent) for any other purpose, or refuse its approval or grant its approval upon conditions. By cl 19(2)(b) where an application for planning consent is made with respect to land within a Reserve, the Council shall have regard to the ultimate purposes intended for the Reserve.
52 In other words, even though the development is proposed in respect of a Reserve under the Scheme, and so is not required to obtain planning consent as a result of cl 21 and the zoning tables in Tables 1 and 2, the applicant is nonetheless required to obtain approval for, amongst other things, the construction of a building on a Reserve. A "building" obviously includes a "dwelling house" as proposed. Where cl 19(2)(b) makes reference to "an application for planning consent" being made with respect to land within a Reserve, it plainly refers to the application for approval to which cl 19(2)(a) refers and, as a result, picks up the cl 11 requirements concerning the way in which the application for planning consent must be made under the Scheme. In that way, the planning consent provisions in respect of zones and Reserves are harmonised by the Scheme.
53 Nonetheless, cl 19 generally lays out a specific consent requirement for specified activities on a Reserve. In the exercise of its discretion whether or not to grant planning consent under cl 19, it is clear that the Council must have regard to the matters made relevant to the consideration of an application for planning consent by cl 13 of the Scheme. Clause 19(2)(b) adds an additional matter to be considered, namely, "the ultimate purposes intended for the Reserve".
54 In these circumstances, unless there is some other provision in the Scheme that exempts the applicant from the requirement to obtain planning consent under cl 19 of the Scheme, planning consent must be obtained under cl 19.
55 Additionally, as noted earlier, cl 25(2) provides that, subject to sub-clause (9), where land is identified on the Scheme Map as being within a Development Investigation Area, the Council shall require the
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- rezoning of the land consistent with the proposed uses and the preparation of a comprehensive Development Guide Plan for the land and the endorsement of the Plan by it and the Western Australian Planning Commission prior to approving any subdivision or development of the land.
56 As we have seen, cl 25(9) qualifies this requirement by providing that the Council may approve any development in a manner consistent with "the underlying zone" without requiring a Development Guide Plan, where, in the opinion of the Council, such development is of a "minor nature" and will "not adversely affect the future subdivision or development of land within the Zone".
57 In this case, the development is actually proposed on that portion of the whole of Sussex Location 413 that is within the Reserve - not a zone - but the land is not presently subdivided, and the whole of the land upon which the development is proposed actually includes the eastern sector which is zoned Tourist.
58 Whether or not a Development Guide Plan is required in respect of the application for planning consent that is required under cl 19 (assuming for the moment there is no provision exempting the applicant from that requirement), the question is whether the development proposed "is of a minor nature and will not adversely affect the future subdivision or development of land within the zone". To that particular issue, we will shortly turn.
59 Clause 25(10) further provides that a dwelling house may be erected on an existing allotment of land within a Development Investigation Area where the Council is satisfied that siting of the dwelling house is "unlikely to prejudice the future development of the land or other land in the vicinity". The proposed development of the dwelling house is on "an existing allotment of land". The existing allotment of land is Sussex Location 413. While there is no interpretation of the expression "allotment of land" in Sch 1 to the Scheme, the ordinary and natural meaning of that expression in circumstances such as these is a "Lot" as recognised under the Planning and Development Act 2005 and also by reference to the Transfer of Land Act 1893 (WA). It is thereby the whole of Sussex Location 413. As we have also seen, Sussex Location 413 as a whole is within a Development Investigation Area.
60 The Tribunal considers the proper interpretation of the whole of cl 25(10) must be that where the only development proposed is a "dwelling house" then it may be erected on the land notwithstanding that
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- the land is within a Development Investigation Area, in circumstances where Council is satisfied that the siting of the dwelling house is unlikely to prejudice the future development of the land or other land within the vicinity. It remains for the Tribunal to consider whether the siting of the dwelling house in this case is "unlikely to prejudice the future development of the land or other land in the vicinity". If it is unlikely to prejudice such development then a dwelling house may be erected on the land without the need for a Development Guide Plan to have been adopted under cl 25.
61 We think this is the proper interpretation of cl 25(10) for a number of reasons. First, cl 16 evidences a policy that, generally speaking, the erection on a lot of a single house is exempt from planning consent. This seems to be carried forward in relation to land which is within a Development Investigation Area. Second, it makes sense that unless the proposed development of a single dwelling house (subclause (10) is in the singular - "dwelling house") that the only reason the Council would not approve it would be if it were likely to prejudice the future development of the land or other land in the vicinity. Clause 25(10) therefore gives the Council a degree of control over the erection of a dwelling house on land within a Development Investigation Area. But, the subclause also gives a land owner a qualified right to construct a dwelling house on a site within a Development Investigation Area if it can demonstrate it is unlikely to prejudice the future development of the land or other land in the vicinity. However, cl 25(10) does not, on its own, mean the land owner can avoid the development controls created by the Scheme. The Council and the Shire must express its satisfaction in respect of cl 25(10) before a dwelling house can be erected on land within a Development Investigation Area. That is why we say it is perhaps best described as an expectation of a qualified right.
62 Clause 16 of the Scheme, as we have seen, provides that notwithstanding any other provision of the Scheme, the erection on a lot of a single house does not require planning consent, except where relevantly -
"(d) the development is inconsistent with any other provision of the Scheme."
63 In the Tribunal's view, a development may well be inconsistent with any other provision of the Scheme not only where another provision of the Scheme seems expressly to contradict the exemption created by cl 16, but also where another provision of the Scheme on its proper interpretation and application produces an inconsistency with the exemption provision.
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- In this we agree with the ruling of Deputy President Judge Chaney on the preliminary point in these proceedings : See Canal Rocks and Shire of Busselton [2005] WASAT 56 at [26]. For example, if in this case the facts before the Tribunal demonstrate that the siting of the dwelling house is, in fact, likely to prejudice the future development of the land or other land in the vicinity, for the purposes of cl 25(10), as a result of which the requirement in cl 25 arises for a Development Guide Plan to be adopted before development on the land is approved, then the proposed development would be inconsistent with cl 25. A separate question might then remain, as it does here, whether cl 25(9) applies to remove the need for adoption before a development of a "minor nature" can be approved.
64 It remains to be seen then whether clauses 25(10) or 25(9) apply having regard to the facts of the application effectively to exempt the proposed erection of the dwelling house from the requirement for planning consent.
65 Further, the Tribunal is of the view that the exemption created by cl 16 would, potentially, be inconsistent with the requirement in cl 19 for the Council to give approval to the construction of a building - including a single house - on a Reserve. Clause 19(2)(b), as we have seen, expressly requires the Council to "have regard to the ultimate purposes intended for the Reserve" when considering whether the prescribed activities referred to in cl 19(1) should be approved on a Reserve. If the cl 16 exemption from planning consent in respect of a single house on a lot were to apply in respect of the proposed development of a single house on land within a Reserve, the Council would not have the opportunity to determine whether the proposed development satisfied that important criterion.
66 Whether or not it may be said that there is some express inconsistency between the exemption provision in cl 16 and the activity approvement regime created by cl 19 in respect of a Reserve, matters little as the Council plainly retains direct control over the express activities in Reserves. If it chooses not to give approval, that decision will be effective, subject of course to the right of an aggrieved person to seek a review of the Council's decision made under cl 19 in this Tribunal.
67 In these circumstances, the Tribunal believes that ultimately the cl 16 exemption in respect of the erection on a lot of a single house has no application where it is proposed to erect the single house on land which is the subject of a Scheme Reserve under Part 3 of the Scheme, as in this case.
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68 In this review, however, as we have seen, the planning control context is not simple, because not only is there the requirement for approval that arises under cl 19 for development within the Reserve for recreation, but there is also the potential restriction on the grant of any approval or planning consent prior to the approval of a Development Guide Plan, because of the effect of cl 25 of the Scheme.
69 The Tribunal considers that cl 19 and cl 25 of the Scheme must be read in harmony. Just because the development is proposed on land within a Reserve does not mean that cl 25 does not have any application to it. Rather, the applicant, in the particular circumstances of this case, must not only obtain approval under cl 19 but must also meet the requirements of cl 25, if they apply. That is not such a remarkable proposition in circumstances where the whole of Sussex Location 413 has been historically marked off as an important assessment area if and when future development is proposed. In any event, the simple fact is that the whole of the land is within the Development Investigation Area and cl 25 applies to it. The approach taken by the Tribunal in this regard is also supported by cl 5(2) of the Scheme which expressly provides that the provisions of each part of the Scheme shall be read in conjunction with the rest of the Scheme and shall not be deemed to limit or otherwise prejudicially affect any other part.
70 If cl 25 applies to the present application for approval of the dwelling house which was lodged with the Shire and is now before the Tribunal on the basis there has been a "deemed refusal" under cl 15 of the Scheme, then the view of the applicant that there has been a deemed refusal, thus giving it the right to seek review in the Tribunal, will be erroneous. This is because, if cl 25 applies, there can be no grant of approval to any development of the land prior to the preparation of a comprehensive Development Guide Plan for the land and the endorsement of that plan by the Shire and the Planning Commission (cl 25(2)).
71 The first important question to be determined then is whether the requirement for an endorsed Development Guide Plan created by cl 25(2) does not apply in the circumstances of this case, either because of clauses 25(10) or 25(9).
Whether cl 25 does not apply to the proposed development by reason of either cl 25(10) or cl 25(9)
72 There are two related questions that arise in deciding whether the requirement under cl 25(2) of the Scheme for a comprehensive Development Guide Plan for the land to be endorsed by the Shire and the
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- Planning Commission before any approval to the proposed development can be given, arises in this case:
• for the purposes of cl 25(10), whether the Tribunal can be satisfied that "the siting of the dwelling house is unlikely to prejudice the future development of the land or other land in the vicinity".
• for the purposes of cl 25(9), whether in the opinion of the Tribunal such development "is of a minor nature and will not adversely affect the future subdivision or development of land within the Zone".
74 The Tribunal has received considerable evidence going to the various relevant factors earlier set out raised by cl 13 of the Scheme. That same evidence also goes to the question whether the development as proposed runs counter to the policies and principles set out in Statement of Planning Policy No 6.1 in respect of the Leeuwin-Naturaliste Ridge. All that evidence is of primary importance in considering the application of clauses 25(10) and 25(9).
75 The Tribunal had the benefit of planning evidence given on behalf of the Shire by Mr Aaron Bell, Senior Planner within the Strategic Land Use Planning Section of the Shire of Busselton and Mr Michael Swift, a Town Planner in private practice (and who earlier, between June 1992 and January 1997, was the Principal Planner and then Director, Planning and Development Services at the Shire). The two planners gave their evidence concurrently by reference to a Joint Statement of Issues arising in relation to planning matters.
76 The Tribunal also had the considerable benefit of the environmental science evidence of Mr David Kaesehagen, an environmental scientist with over 18 years consulting experience in Western Australia, called on behalf of the Shire, Dr Paul Van der Moezel, a botanist with more than 15 years experience in environmental management, called on behalf of the applicant, and Mr Howard Mitchell, an urban designer, environmental planner and landscape architect in private practice in Western Australia since February 1992 (and prior to that with extensive experience in the
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- United Kingdom), also called on behalf of the applicant. These experts gave their evidence jointly by reference to a joint statement in relation to environmental and visual impact issues that they had prepared following a conference between them.
77 The key issue that arose from the evidence of the planners and the other experts related to the visual impact of the proposed development to which we will soon turn.
78 Other issues raised by the environmental scientists, but are not considered ultimately to be key issues for the present purposes include:
• Habitat disturbance arising from the clearing required for the proposed development.
• Implications for flora protection.
• Habitat disturbance.
• Threats for ecological communities.
• The possible introduction, spread and control of dieback.
• The possible introduction, spread and control of weeds.
• Implications for compromise of environmental values of adjacent conservation Reserve (Leeuwin-Naturaliste Ridge National Park).
79 The evidence before the Tribunal shows that:
• the probable cumulative area of vegetation clearing required for the proposed development is -
1. dwelling and facilities - 700 square metres
2. road access and egress -1460 square metres
3. fire management zones - 10 460 square metres.
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- • that there is no rare or threatened flora or ecological communities on the subject land.
• Dr Van der Moezel was of the opinion that the proposed development would cause little damage or disturbance to habitats of the locality and did not believe that there would be any significant habitat disturbance. Mr Kaesehagen however considered that habitat disturbance may be locally significant, particularly when considered in terms of the level of habitat disturbance associated with the broader development of Sussex Location 413 in the eastern sector.
• Dr Van der Moezel and Mr Kaesehagen agreed that there are no rare or threatened ecological communities on the land.
• Dr Van der Moezel considers that whilst there is a risk of dieback during the construction phase of the development and following construction in the use of the development, it was not significant. Mr Kaesehagen considered that because the control of dieback during both a construction phase and later is difficult to achieve in practical terms, a precautionary approach should be taken and this risk should not quickly be dismissed. In the event, however, the evidence suggested that there are appropriate project management controls available and used in other areas. Nonetheless the risk of dieback is a significant one and very strict controls would need to be put in place, especially during the construction phase, when contractors, subcontractors and others will bring vehicles and equipment and other material on to the development site. The evidence in the end suggests that this concern can be managed through appropriate strict conditions on development.
• while weeds were also considered a risk, and the education of the landowners and land users in relation to the risk is an important step in management, the evidence suggests that through the approval of an appropriate landscape plan, including management techniques, weed risks can be suitably dealt with by appropriate conditions.
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- • both Dr Van der Moezel and Mr Kaesehagen agree that the proposed development would be unlikely to significantly compromise the environmental values of the Leeuwin-Naturaliste Ridge National Park which is nearby. There was some difference of opinion between these experts as to the effect on the local conservation values of the land. In the end, the evidence suggests that these local issues can be managed through dieback management plans, landscape management plans and a carefully controlled bushfire management plan.
80 For all experts, the key issue concerning the location of the proposed development centred on the visual impact of the proposed development.
81 Mr Mitchell and Mr Kaesehagen agreed that visual amenity is the visual experience of the existing natural, rugged coastal landscape characteristics that are experienced by visitors to the area.
82 Mr Swift expressed the view that having regard to the broader locality, persons using the Cape to Cape walk would not be "surprised" by the proposed dwelling house when they first saw it along the 60 metre stretch of the walking trail, notwithstanding its appearance in the foreground view in a granite heath coastal environment. He emphasised that for walkers walking south from the Smiths Beach tourist area, walkers will have just seen reasonably large scale tourist development and the dwelling house would not be a surprise in that context. He also drew attention to the fact that in the mid view two other houses can be seen further up the hill and so the addition of a dwelling house in the near view does not, in essence, compromise existing intrusions into the landscape. He also noted the nature of the coastal view in that area, including boats in season moored near Canal Rocks and the Canal Rocks area including the parking area, and of the view one has of tourist vehicles arriving and the like.
83 Mr Mitchell, on the other hand, more cautiously expressed the view that, on balance, the proposed development would not substantially detract from the visual amenity of the area. He said this because he considered views to the development would be restricted by topography or vegetation or both. He noted that the siting of the dwelling, and its scale, form, colour and material reflectivity would produce a development that was neither obtrusive or intrusive within the broader landscape.
84 However, Mr Mitchell accepted that the question of visual impact was a key issue on which the subjective views of different persons might
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- differ when it came to assessing the extent of the impact. He drew on his own subjective view being relative to the length of his own experience in the Australian, Western Australian and local Smiths Beach landscapes. He has been working professionally in Western Australia since 1992. He noted that Mr Kaesehagen's experience with the same landscape is of a different, longer order.
85 Mr Kaesehagen emphasised that the views to the proposed development would not be substantially restricted by topography and vegetation and that the proposed development could be seen from the Cape to Cape track as well as from Canal Rocks and the near-shore ocean. He considers that the proposed development would be visually evident as part of the foreground view shared from sections of the Cape to Cape track.
86 Both Mr Mitchell and Mr Kaesehagen explained they had walked the coastal track in both directions. Mr Mitchell classed the experience as one identifiable landscape unit or semi-natural character area. Smaller elements contribute to the creation of sub-character areas that are experienced at an intimate level where the close proximity and the arrangement of the elements to the observer defines the character of that particular place.
87 Mr Kaesehagen considered that all elements (topography, natural vegetation, the rugged rocky cliff edge and extensive ocean) together formed a scenic composition that exhilarates the visual senses (along with the auditory and olfactory senses). He thought that whilst the eye is drawn to the immediate foreground in order to navigate the rocky and winding track, it also takes in other foreground features along with midground and background views. Depending on the orientation of the track, the view field will correspondingly change. At times it will be dominated by the vegetation with peripheral views of the ocean and rocky cliffs, whilst at other times the ocean and cliffs will be more dominant and the vegetation occurring peripherally. He did not believe that as a visual experience any one element of the view dominated over any other. It all worked together to make a highly natural and semi-wilderness experience.
88 Mr Kaesehagen also emphasised the "wilderness like" character of the land and adjacent land in the vicinity of the proposed development and also after one leaves, when travelling in a southern direction along the track, the Smiths Beach tourist development. He emphasised the "naturalistic" environment and pointed out that, to the extent that the tourist development at Smiths Beach might have a "conditioning" effect
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- on walkers, the value of the landscape soon after one leaves the Smiths Beach tourist development area, is that it provides "relief from conditioning".
Submission of Minister pursuant to s 245 of the Planning and Development Act 2005 (WA)
89 Following the hearing, the Tribunal received a submission in relation to the proceeding from the Minister for Planning and Infrastructure, the Hon Alannah MacTiernan, pursuant to s 245 of the Planning and Development Act 2005. Under this provision, the Minister is entitled to make a submission to the Tribunal at any time before a determination is made. Having received the submission, the Tribunal forwarded copies of it to the representatives of the parties and requested any further submissions they may have in relation to the matters raised by the Minister in her submission.
90 The Minister, in her written submission dated 7 July 2006, supports the Shire's position in relation to the matter. In short, the Minister submits that:
"… given the visual prominence of the site and the proposed siting of the development, the impacts of clearing in addition to the development itself would have a marked negative impact on the amenity of the locality."
91 The Minister draws attention to the objectives of the Leeuwin-Naturaliste Ridge State Planning Policy (LNRSPP) and emphasised that the site, in this context, is large and prominent in an environmentally sensitive coastal locality.
92 The Minister also submits that approval of the current proposal would constitute an undesirable precedent for the subject land and for the planning and development of the Smiths Beach locality.
93 The Minister also draws attention to the Ministerial Taskforce she had established to review structural arrangements for coastal planning and management in Western Australia which had led to the establishment of the Coastal Planning and Coordination Council as a standing committee of the Western Australian Planning Commission under amendments made to the Western Australian Planning Commission Act 1985 (WA) in 2003. She also drew attention to the State Government's policy platform for Better Beaches. The Minister states that:
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- "It is this sensitivity to coastal planning and development issues and the need for improved State-wide planning that informed my decision as Minister, consistent with undertakings given in the 2001 election campaign, to seek an urgent review by the WAPC of the planning policies for the Smiths Beach locality."
94 The Minister draws particular attention to the amendments made to the LNRSPP in relation to Smiths Beach and the following policies:
• The LNRSPP
• SPP No 1 - State Planning Framework Policy
• SPP No 2 - Environment and Natural Resources Policy
• SPP No 2.6 - State Coastal Planning Policy
• SPP No 3 - Urban Growth and Settlement
• SPP No 3.4 - Natural Hazards and Disasters
• The Shire of Busselton's Town Planning Scheme.
95 The Minister also draws attention to Amendment No 92 to the Shire's Scheme to which she has granted final approval, subject to modifications that do not require it to be readvertised and advises that the amendment has not yet been gazetted. She says however that the Tribunal can have regard to that amendment now.
96 In summary, the Minister submits that the proposal is inconsistent with the orderly and proper planning of the subject site and locality and is incompatible with the amenity of the locality. She submits that the site and locality deserve the most careful planning attention to deliver a sustainable outcome in the public interest and the current development proposal would, if implemented, prevent that outcome from being achieved. She draws attention to the objectives stated in s 3(1)(c) of the Planning and Development Act 2005, to "promote the sustainable use and development of land in the State".
97 The Shire chose not to file any further submission in light of the Minister's submission. Perhaps this is not surprising, as the Minister's submission generally supports the Shire's position.
98 However, the solicitors for the applicant lodged a further written submission in response to the Minister's submission. The applicant's
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- further submissions dealt with a number of matters already canvassed during the hearing, including:
• the requirement for planning consent;
• some of the relevant evidence given at the hearing; and
• proper interpretation of Scheme provisions.
100 In most other respects the applicant joined issue with the Minister in relation to her submissions that the proposed development would be contrary to orderly and proper planning and the various planning or policy instruments referred to in the Minister's submission.
101 The applicant in its further submissions deals again with issues concerning the proper interpretation of cl 25(10) of the Shire's Scheme and emphasises the need for a "purposive and not literal approach" to statutory interpretation to be adopted in relation to that clause: see Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, per McHugh JA (as His Honour then was). The upshot of the further analysis provided on behalf of the applicant in relation to the proper interpretation and effect of cl 25(10) is that it could not have been the intention to subject a person who wishes to erect a single dwelling house on an existing allotment to the cost and inconvenience of having to prepare "a comprehensive Development Guide Plan for the land" and to have that plan endorsed by the Commission and the Council, prior to being able to have a development application for such a single house determined.
102 In the event, the applicant maintains its position as argued at the hearing, that:
• the proposal is exempt from planning consent;
• if the Tribunal is of the view that planning consent is required then the applicant submits that the proposal is entirely consistent with the Shire's Scheme and other
- relevant planning controls and should be approved on its merits;
- • if the Tribunal refuses the proposal, then this should be on the basis that the subject land is reserved for purposes such that the effect of the decision is to permit the land to be used or developed for no purpose other than a public purpose.
Tribunal's findings
103 As noted, the key issue among the broader planning and amenity issues is the visual impact of the proposed development in the locality. The Tribunal has formed the view, a position consistent with that of Mr Kaesehagen, that once one passes by the current tourist area at Smiths Beach and walks in a southerly direction, or if one is walking from the Canal Rocks area in a northerly direction towards Smiths Beach in the vicinity of the subject land, while the environment and landscape is not "pristine" in botanical or other terms, it is "in very good condition", as the experts appear to agree, and very "naturalistic", as Mr Kaesehagen put it. To the casual observer - and the Tribunal with the experts took a view of the area - it is extremely natural. It is part of a rugged coastline, there is an interesting ocean view, there is wave movement, and waves crash incessantly on off-shore rocks. There is at different times of the year craft moored near Canal Rocks. There is also an immediate granite heath environment in the vicinity of the proposed development. In the further distance the thicker vegetation of the Leeuwin Naturaliste Ridge National Park is evident. While two other houses can be seen, if one looks for them, they are not prominent in the closer view, only in the mid or longer distance landscape.
104 The proposed development - even with sensitive attention to its scale and built form - would, in our view, undoubtedly constitute an extremely prominent form of development in this significant coastal environment. It would bluntly intrude upon the "wilderness-like experience" - as Mr Kaesehagen put it - that we consider currently exists in the particular locality. We agree with Mr Kaesehagen's suggestion that rather than think that persons using the locality along the Cape to Cape walking track will have been conditioned to seeing another human habitation, it is more appropriate to think that the locality could provide relief from any such conditioning. The fact that the evidence shows that in other places along the Cape to Cape walk track - for example, around the Indjidup area much further to the south - there appear to be other dwelling developments, does not address the question of the visual impact that this proposed
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- development will have in this locality. Rather, the evidence before us shows that the particular coastal environment once one leaves Smiths Beach and walks towards Canal Rocks is currently in a wilderness-like state.
105 In the Tribunal's view, the construction of the proposed development would significantly affect the current visual amenity of the immediate locality.
106 In these circumstances, the Tribunal is of the view that to site a dwelling house on the proposed location within the western sector of the land in the area reserved for recreation - in circumstances where the eastern sector of the land which is zoned Tourist is yet to be developed and the Development Guide Plan lodged with the Council in respect of that development is currently "deferred" - is likely to prejudice the future development of the land as a whole. It is also likely to have an effect on the foreshore land in the vicinity of the reserved land, and its use. Until such time as a Development Guide Plan has been endorsed in respect of the whole of Sussex Location 413, as a result of which it can be fully understood what the ultimate form of development over the whole of the land is likely to be, the Tribunal cannot be satisfied that the siting of the dwelling house is unlikely to prejudice the future development of the land or other land in the vicinity.
107 Accordingly, in light of this finding cl 25(10) of the Scheme has no application to the proposed development.
108 Similarly, we consider that by reason of the significant visual impacts likely to flow from the proposed development, the development cannot be considered to be of a "minor nature" for the purposes of cl 25(9). Whilst the proposed development is on the portion reserved for recreation, the whole of the land includes land zoned Tourist. A Development Guide Plan needs to have regard to the whole of the land. Where land is "zoned", the underlying zone needs to be regarded for the purposes of cl 25(9). It cannot be said in this case that the proposed development is consistent with the underlying zone, in this case that part zoned Tourist, because it involves the development of land currently set aside as a Reserve for recreation which may be important to the future development and use of the Tourist area.
109 The Tribunal does not think that the reference to the "zone" can simply be taken as a reference to the Reserve, but we do think that the proposed development of a single dwelling house on the reserved land and in circumstances where the planning thus far has provided for intensive
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- tourist (and residential) development of the eastern portion of the land, is discordant with that proposed tourist and residential development and may be considered for that reason also to adversely affect the future development of the land within that zone.
110 In short, the proposed development, in the land planning context before us, is not of a "minor nature". It will also, we consider, adversely affect the future development within the Tourist zone of the land. The future tourist and residential use of the eastern sector of the land, on a considered view, should have the benefit of the land reserved for recreation without that Reserve having a residential development located on it, in a prominent position, close to the Cape to Cape walking track. Additionally, the proposed development could significantly affect the use and enjoyment of other land in the vicinity - the foreshore land - and for this reason also cannot be considered to be of a "minor nature".
111 For these reasons, the Tribunal does not consider that cl 25(9) applies to relieve the applicant of the need to submit and have endorsed a Development Guide Plan as required by cl 25(2) of the Scheme.
The merits of the development proposal
112 Because the Tribunal has found that cl 25 of the Scheme applies in respect of the proposed development, it is not necessary - indeed the Tribunal does not have jurisdiction - to go on to consider whether a planning consent should be granted or refused in respect of a proposed development. However, it has been necessary for the Tribunal to consider issues touching on the merits of the proposed development in order to determine whether cl 25 of the Scheme applies.
113 In this context, the Tribunal has formed the view that the visual impact of the proposed development in the locality in which it is proposed would be significant.
114 However, for the reasons just explained, the Tribunal does not have jurisdiction formally to grant or refuse the application for planning consent. That application remains pending before the Council of the Shire of Busselton and will need to be determined in due course by the Council once a Development Guide Plan has been endorsed in accordance with the requirements of cl 25 of the Scheme.
Conclusion and Order
115 In view of the Tribunal's view that cl 25(2) of the Scheme applies, it was not open to the Council and is not now open to the Tribunal to
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- approve the proposed development on the Scheme Reserve pursuant to cl 19 of the Scheme. For that reason, there has been no occasion for a deemed refusal to arise under cl 15 of the Scheme. The result is that the current application in the review jurisdiction of the Tribunal is incompetent; put another way, the Tribunal does not have jurisdiction to entertain the application and to grant planning consent or to refuse planning consent as the substitute decision-maker for the Council.
116 The consequence is that the application for planning consent made by the applicant to the Council remains pending before the Council until such time as a comprehensive Development Guide Plan for the whole of Sussex Location 413 has been endorsed by the Shire and the Western Australian Planning Commission. The Council cannot approve any development of the land, including the proposed development by way of a dwelling house on the western sector of the land that is reserved for recreation, until such a Development Guide Plan is so endorsed. The Tribunal should make a declaration to that effect.
117 The Tribunal would make the following order and consequential declaration:
1. The application be dismissed.
2. The Tribunal declares that the application for planning consent in respect of the proposed development initially lodged with the Shire of Busselton remains to be determined by the Shire of Busselton in accordance with the Shire of Busselton District Town Planning Scheme No 20 on the basis explained in the reasons for decision of the State Administrative Tribunal, given on the same date as this order and declaration.
- I certify that this and the preceding [117] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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- Annexure 1
3
6