CANAL ROCKS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2013] WASAT 104
•7 JUNE 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CANAL ROCKS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 104
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)
HEARD: 18 DECEMBER 2012 AND 4 AND 7 JUNE 2013
DELIVERED : 7 JUNE 2013
PUBLISHED : 3 JULY 2013
FILE NO/S: DR 149 of 2010
BETWEEN: CANAL ROCKS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision application - Sewerage services - Community Wastewater Management Scheme - On-lot aerobic treatment units (ATUs) for treatment of sewage, retention of solids and conveyance of treated liquids through a reticulated system connected to Water Corporation wastewater treatment plant - Whether Community Wastewater Management Scheme is a 'reticulated sewerage' service - Whether Community Wastewater Management Scheme is sufficiently advanced to enable subdivision approval subject to a condition that it be implemented - Words & phrases: 'reticulated sewerage'
Legislation:
Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), reg 4, reg 4A, reg 42A(1), reg 42D
Land Administration Act 1997 (WA), s 195, s 196
Planning and Development Act 2005 (WA), s 135, s 152, s 167, s 241
Shire of Busselton Town Planning Scheme No 20, cl 25, cl 27, Sch 13
State Administrative Tribunal Act 2004 (WA), s 31
Transfer of Land Act 1893 (WA), s 70A, s 129BAResult:
Conditional subdivision approval granted
Summary of Tribunal's decision:
Canal Rocks Pty Ltd sought review of the decision of the Western Australian Planning Commission to refuse subdivision approval of Lot 4131 Smiths Beach Road, Yallingup. Other than in relation to the provision of sewerage services to the site, it was common ground between the parties that the proposed subdivision is acceptable and merits conditional subdivision approval.
Canal Rocks Pty Ltd proposed that subdivision approval be granted subject to a condition that a Community Wastewater Management Scheme (CWMS) be implemented to provide sewerage services to the site. The CWMS comprises on-lot aerobic treatment units, known as 'ATUs', installed within each lot for treatment of sewage, retention of solids and conveyance of treated liquids through a reticulated system connected to a Water Corporation wastewater treatment plant. The solids retained in the ATUs are removed periodically by trucks. No treated sewerage is disposed of on site.
The Commission contended that the CWMS is not a 'reticulated sewerage' system and is not sufficiently advanced to enable approval of the subdivision subject to a condition that it be implemented.
The Tribunal determined that the CWMS is consistent with the planning framework, because it is a 'reticulated sewerage' system and, even if it was not, it satisfies the requirement of the planning framework that 'suitable alternative technologies' can be implemented. The Tribunal also determined that the CWMS is sufficiently advanced for the subdivision to merit conditional approval because the CWMS is sufficiently defined and understood, is technically viable, the subdivision cannot be implemented unless the CWMS is put in place, and it is subject to conditions in terms of a management plan and legislation to ensure satisfactory operation.
The Tribunal therefore granted conditional subdivision approval.
The Tribunal published written reasons based on the transcript of oral reasons edited to correct errors in transcription and for clarity.
Category: B
Representation:
Counsel:
Applicant: Mr MJ Hardy
Respondent: Mr KM Pettit SC with Ms CA Ide
Solicitors:
Applicant: Hardy Bowen
Respondent: State Solicitor for Western Australia
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1Canal Rocks Pty Ltd (Canal Rocks) seeks review of the decision of the Western Australian Planning Commission (Commission) to refuse to grant subdivision approval under s 135 of the Planning and Development Act 2005 (WA) (PD Act) of Lot 4131 Smiths Beach Road, Yallingup (site), into 88 single lots for residential development and eight 'super lots' for tourist development. The plan of subdivision is Plan No 160‑244F‑01 dated 13 September 2011. The site has an area of 40.4686 hectares and is located within the Leeuwin‑Naturaliste coastal region approximately three kilometres south of Yallingup.
2Other than in relation to the provision of sewerage services to the site, it is common ground between Canal Rocks and the Commission that the proposed subdivision is acceptable and merits conditional subdivision approval. As we noted in order 8 made on 18 December 2012, the sole issue for determination in this proceeding (other than any issue in relation to conditions) is whether the application for subdivision approval should be refused on grounds related to the provision of sewerage services to the site. As we noted in order 9 made on 18 December 2012, Canal Rocks proposes subdivision approval subject to a condition that its proposed Community Wastewater Management Scheme (CWMS) is to be implemented to provide sewerage services to the site.
3After the hearing of the matter commenced on 18 December 2012, the hearing was adjourned to 16 April 2013 in order to enable the Commission to refer the CWMS to relevant agencies, to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) having regard to the CWMS and any comments from referral agencies, and to formulate a set of 'without prejudice' conditions of approval should the Tribunal decide to approve the application.
4The Commission reconsidered its decision under s 31 of the SAT Act at its meeting on 26 February 2013 and resolved to affirm its refusal of the subdivision for the following reasons:
a)Non‑conformity with State Planning Policy No 6.1 ‑ Leeuwin‑Naturaliste Ridge Policy and the Draft Country Sewerage Policy in that:
i)the application does not provide reticulated sewerage and does not demonstrate that suitable alternative technologies that achieve standards approved by the responsible authorities will be provided instead;
ii)the applicant has not made any agreement with a licensed provider and operator of sewerage services to provide and operate sewerage infrastructure and services for the subject site;
iii)the applicant has not made any agreement with the Water Corporation for use of Water Corporation infrastructure and services, in particular the Anniebrook Wastewater Treatment Plant;
iv)the applicant has not reached any agreement with the City of Busselton or other entity for supervision of the maintenance of the on‑site infrastructure; and
b)approval of the proposed subdivision in the absence of a resolution of the sewerage servicing and management arrangements would create significant health and environmental risks, be contrary to orderly and proper planning, and would constitute an undesirable precedent for this locality and servicing of subdivided land generally.
5The Commission also formulated an extensive set of 'without prejudice' draft conditions as required by the Tribunal's order. Canal Rocks accepts all of the draft conditions but seeks variations in relation to the terms of two of them.
6The hearing listed for 16 April 2013 was vacated and the final hearing of this matter ultimately took place on 4 June 2013. At the hearing, Mr KM Pettit SC, who appeared with Ms CA Ide on behalf of the Commission, further narrowed the issue for determination from the reasons for refusal in the Commission's resolution of 26 February 2013 to 'almost a point of principle' which can be expressed as whether the CWMS is now sufficiently advanced to enable approval of the subdivision subject to a condition that the CWMS be implemented having regard to orderly and proper planning and the location and characteristics of the site.
7Mr MJ Hardy, counsel for Canal Rocks, agrees that this is the central issue for determination.
8We will address the central issue after describing the CWMS and the planning framework.
The CWMS
9Canal Rocks called Ms Emily Buck, a landscape architect and environmental engineer employed by Syrinx Environmental Pty Ltd (Syrinx) to give evidence. Ms Buck explained that the CWMS proposed for the site was developed by Syrinx as an alternative solution for the provision of sewerage services for the development of the site, because, given that the closest wastewater treatment plant at Anniebrook is 17 kilometres away and the topography of the land in between, while a conventional reticulated scheme is technically feasible, it is not considered to be economically or environmentally sustainable. In particular, because of the meteorological and topographic conditions, a conventional reticulated scheme for both solid and liquid waste would have required topping up with groundwater, which is environmentally unsustainable.
10The proposed CWMS comprises on‑lot aerobic treatment units, known as 'ATUs', installed within each lot for treatment of sewage, retention of solids and conveyance of treated liquids through a reticulated system connected to Anniebrook Wastewater Treatment Plant. The ATUs and other on‑lot assets would be generally situated underground and have limited visual impact. Two above ground pumping stations are proposed for the liquids on or proximate to the site. These would be required in any case for a conventional reticulated system. The solids retained in the ATUs would be removed by trucks periodically, at least once every three years.
11Ms Buck gave evidence, which was not questioned or contradicted, that the on‑lot retention of solids and conveyance of liquids only to the Anniebrook Wastewater Treatment Plant 'overcomes the adverse effect of solids (ie[,] septicity issues) within pump chambers and pipe work'. She acknowledges that further assessment is required to determine the impact of nitrogen and phosphorus from the wastewater piped from the site on the Anniebrook Wastewater Treatment Plant. The issue is not that the nutrients limit the use of the treated effluent for irrigation, as the treated effluent meets regulatory requirements, but rather that it may not meet the allowable nitrogen and phosphorus annual loading rates stipulated in the Water Corporation's operating licence for the Treatment Plant.
12The CWMS proposes a bulk supply and installation arrangement of Department of Health approved ATUs undertaken by Canal Rocks. Ms Buck said that this is important, because it ensures that a single entity would manage the purchase and installation of ATUs.
13Regulations 4 and 4A of the Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA) (Health Regulations) require the approval of ATUs by the local government, relevantly the City of Busselton (City), for a single dwelling, and by the Executive Director, Public Health for tourist development. Part 4A of the Health Regulations relates to maintenance of ATUs. Regulation 42A(1) requires that:
The owner of any premises on which an aerobic treatment unit is installed shall ensure that at all times satisfactory arrangements are in place for the maintenance of the unit by an authorised person.
14Regulation 42D of the Health Regulations states as follows:
Where an authorised person becomes aware of any change in the ownership of premises on which an aerobic treatment unit is installed, the authorised person shall, as soon as practicable after becoming aware of that change in ownership, take reasonable steps to inform the new owner of ‑
(a)the general requirements for the maintenance of the unit; and
(b)the requirement for the owner to ensure that satisfactory arrangements are in place for the maintenance of the unit; and
(c)the need to maintain the irrigation system of the unit in an unaltered form.
15Importantly, unlike traditional septic tanks, the ATUs proposed for the site are purely treatment and retention units and do not discharge any treated effluent on site. In contrast, the adjoining Smiths Beach Resort, which abuts the north‑eastern corner of the site, involves a strata subdivision approved by the Commission in December 2005 into 59 lots for which sewerage services comprise onlot ATUs which treat wastewater and discharge the treated wastewater on site. However, the strata subdivision approval for that development also requires connection to the public reticulated sewerage system when and if it becomes available in the future.
16As Mr Michael Swift, a town planning consultant called by Canal Rocks, said, the proposed CWMS would 'reap environmental and security of service benefits to the whole of the settlement' in that it would enable the adjoining development to discharge treated liquids into the reticulated system, rather than on site.
17Under the CWMS, the Water Corporation would be responsible for all assets from the lot boundary. This is consistent with conventional reticulated sewerage.
Planning framework
18Section 241 of the PD Act requires the Tribunal to have 'due regard' to relevant planning considerations, including any State Planning Policy which may affect the subject matter of the application. General principles in relation to infrastructure, including sewerage provision, are found in State Planning Policy No 1 ‑ State Planning Framework Policy and State Planning Policy No 3 ‑ Urban Growth and Settlement, and in the Commission's Policy DC1.1 ‑ Subdivision of Land General Principles. These policies recognise the fundamental importance and requirement for the provision of infrastructure including sewerage infrastructure for urban development in a way that is efficient, equitable, accessible and timely.
19More particularly, State Planning Policy No 6.1 Leeuwin Naturalist Ridge Policy (SPP 6.1), the Shire of Busselton Town Planning Scheme No 20 (TPS 20), and the Development Guide Plan adopted by the Commission and the City pursuant to Sch 13 of TPS 20 in relation to the site (DGP), contain provisions which specifically address sewerage services for the site.
20SPP 6.1 provides for a hierarchy of urban development and identifies the site as a 'Tourist Node' within a 'Development Investigation Area', 'National Park Influence Area' and 'Principal Ridge Protection Area'. Under Land Use Strategy 4.1 of SPP 6.1, urban development is to conform to the settlement hierarchy set out in Table 1 of that Policy. Table 1 relevantly provides in relation to infrastructure for Smiths Beach west of Smiths Beach Road, which includes the site:
Reticulated water, sewerage and power unless proponent can demonstrate suitable alternative technologies that achieve standards approved by the responsible authorities.
21Land Use Strategies 1.20 and 1.21 of SPP 6.1 provide that tourism development at Smiths Beach 'must include an environmentally acceptable means of effluent disposal' and that:
The size, nature and location of any development in the development investigation areas at Smiths Beach must be determined having regard to the overriding need to protect the visual amenity and environmental values of the area.
22Clause 25 of TPS 20 sets out relevant provisions in relation to the preparation and adoption of Development Guide Plans. Schedule 13 of TPS 20 sets out detailed provisions concerning the site, including the following relevant provisions:
4.... the identified Developable Land Area(s) shown on a [DGP] will identify where development may be undertaken on the land and must be determined having regard to the ‑
(a)overriding need to protect the visual amenity, natural landscape and environmental values of the area; …
5.In relation to [the site] a [DGP] must:
…
(h)Ensure that where reasonably possible all utilities and services on the land are contained within the identifiable Developable Land Area(s).
(i)Ensure that all development is connected to reticulated water, sewerage and power unless the Shire and other relevant responsible authorities are satisfied that suitable alternative technologies can be implemented.
23Clause 35 of the DGP provides as follows in relation to servicing:
All subdivision and development is to be connected to underground power, telecommunications and reticulated water and sewage services. Alternatives to conventional reticulated water and sewerage such as integrated black and grey water re‑use scheme for the overall development and the use of rainwater tanks, are to be considered as part of the servicing strategy for the project.
24The term 'reticulated sewerage' is not defined in SPP 6.1, TPS 20 or the DGP. According to The Macquarie Dictionary (5th Edition, 2009) at page 1412, the ordinary apposite meaning of 'reticulated' is 'to cause (water, etc) to pass through a system of pipes', and 'sewerage' means at page 1509:
1. the removal of wastewater or refuse by means of sewers. 2. a system of sewers. 3. the pipes and fittings conveying sewage.
25As Mr Hardy submits for Canal Rocks, guidance in relation to the meaning of 'reticulated sewerage' is derived from the Draft Country Sewerage Policy (DCSP), which, although in draft form since September 2002, has been applied by the Commission and the Tribunal. The term 'reticulated sewerage' is defined in the DCSP to mean 'a network of sewers collecting wastewater for off‑site disposal from a subdivision or development'. Furthermore, as Mr Hardy submits, the Foreword, cl 6 and Appendix 1 of the DCSP clearly indicate that the term 'reticulated sewerage' is intended to apply to any system of off‑site disposal of wastewater. The Foreword in the fourth paragraph and cl 5 and cl 6 distinguish between on‑site treatment and disposal on the one hand and 'reticulated sewerage' on the other.
26We do not accept Mr Pettit's submission that the DCSP indicates that 'reticulated sewerage' refers only to a 'traditional' or 'conventional' reticulated system. Indeed, the clause most particularly relied on by the Commission, namely cl 6, and the associated Sch 2, explicitly refer to 'on‑site wastewater disposal' in contradistinction to 'reticulated sewerage'. As noted earlier, the CWMS does not involve on‑site wastewater disposal.
27We find that the proposed CWMS is consistent with the planning framework that we have identified for the following reasons.
28First, the CWMS is a reticulated sewerage system within the meaning of the planning framework provisions to which we have referred having regard to the ordinary meaning of the words and the definition and guidance in the DCSP. The CWMS involves a system for removing wastewater by sewers for disposal off-site. Furthermore, although the CWMS includes on‑site treatment of wastewater and retention of solids in the ATUs which are to be removed periodically by truck, this does not preclude the CWMS from being a reticulated sewerage system, both because the solids are not disposed of on site and because it is not unusual for wastewater to be treated and elements removed prior to disposal into the public reticulated sewerage system.
29As Mr Peter Howard, a town planner and environmental scientist employed by the Water Corporation, explained in evidence, there are many circumstances where wastewater is required to be treated on site before it is allowed to be disposed of into the sewer; for example, industrial sites which are required to install grease traps and then dispose of the residue in an appropriate manner. He said that the Water Corporation has agreements with industrial users which require on‑site treatment before material can enter the Water Corporation's sewerage system.
30Secondly, and in any case, even if the CWMS is not regarded as a reticulated sewerage system for the purposes of the planning framework, on the evidence of Ms Buck and Mr Raymond Todd, a civil engineer with 27 years' experience who carried out an independent review of the project and was called by Canal Rocks, and having regard to the discussion later in these reasons, we find that it satisfies the requirement that 'suitable alternative technologies can be implemented' in the form of the CWMS.
Should the subdivision application be refused on grounds related to provision of sewerage services to the site?
31We consider that the CWMS is now sufficiently advanced to enable approval of the subdivision subject to a condition that the CWMS is to be implemented and that the proposed subdivision should not be refused on grounds related to provision of sewerage services for the site for the following five reasons.
32First, as we have found earlier, the CWMS is consistent with the planning framework, because it is a reticulated sewerage system and, even if it were not, it satisfies the requirement that 'suitable alternative technologies' can be implemented.
33Secondly, Ms Buck, Mr Todd, Mr Howard and Mr Greg Simpson, an environmental health officer and the Manager of Environmental Services at the City, all agree that the CWMS is 'technically viable'. Although Mr Howard and Mr Simpson identified certain matters of detail that still need to be resolved in relation to the sewerage proposal, they both agree that 'conditional subdivisional approval was not contingent on these details being resolved'. Furthermore, Mr Howard and Mr Todd agree that 'there is often significant unresolved detail with respect to sewerage proposals at the time of issue of conditions of subdivision including location of pumping stations, route of pressure mains, approvals from affected parties and land matters'.
34Thirdly, on 6 November 2012, the Water Corporation confirmed that 'based on the information provided to date, the Water Corporation would be prepared to be the waste water service provider subject to commercial terms'. The expert witnesses agree that further investigation and design is required prior to the Water Corporation being in a position to articulate the commercial terms that it will apply to the project. The expert witnesses also agree ‑ and Canal Rocks concedes ‑ that the commercial terms required by the Water Corporation may be cost prohibitive, precluding the implementation of the CWMS and therefore preventing the subdivision and development of the site in accordance with the proposed subdivision application.
35Fourthly, as noted earlier, the Commission has provided extensive draft conditions on a without prejudice basis to be imposed if the Tribunal considers that conditional approval should be granted. Of these, nine conditions specifically relate to sewerage, and impose detailed and appropriate controls to ensure that no site works can take place and the subdivision cannot proceed until the CWMS has secured all approvals by the Water Corporation.
36The conditions also ensure that, once implemented, the CWMS will operate satisfactorily.
37Condition 20 requires engineering design plans to be approved and arrangements to be made with the Water Corporation or an alternative licensed service provider, to the satisfaction of the Commission, so that the CWMS will be available to the approved lots.
38Condition 20A requires arrangements to be made with the Water Corporation, to the satisfaction of the Commission, for connection of the sewerage system to the Anniebrook Wastewater Treatment Plant. This is required even before approval of engineering design plans.
39Condition 20B requires arrangements to be made with the City, to the satisfaction of the Commission, for construction and commissioning of appropriate ATUs.
40Condition 21A requires the preparation and adoption of a management plan prior to the commencement of site works to ensure ongoing maintenance of all components of the sewerage system including ATUs located on private land. The plan must stipulate roles and responsibilities for implementation and include mechanisms for:
i.appointment, management, funding and payment of appropriate contractors for monitoring, maintenance and repair purposes;
ii.ensuring access by regulators and operators or contractors to ATUs for monitoring, maintenance and repair purposes, including use of easements-in-gross on titles;
iii.notifying prospective purchasers of lots subject to the management plan of the plan and its requirements, including ongoing payment of relevant costs for monitoring, maintenance and repair purposes;
iv.binding landowners and successors in title to the regular monitoring, maintenance and repair of ATUs and other components of the system and payment of ongoing costs;
v.recording of relevant information concerning the content and operation of the plan on memorials on titles and in management statements of strata titled subdivision and development; and
vi.mechanisms for variation of the management plan in the future, if required, including in relation to management, maintenance and repair costs.
41Fifthly, as noted earlier, the Health Regulations impose legislative requirements for approval and maintenance of ATUs.
42We recognise that there is no certainty that commercial terms will be agreed by Canal Rocks and the Water Corporation and therefore no certainty that the subdivision, including the CWMS, will, in fact, proceed. However, in the circumstances of this case, the CWMS is sufficiently advanced for the subdivision to merit conditional approval because the CWMS is sufficiently defined and understood, is technically viable, the subdivision cannot be implemented unless it is put in place, and it is subject to conditions in terms of a management plan and legislation to ensure satisfactory operation.
43We therefore agree with the following conclusions expressed by Mr Swift in his evidence:
The approval is subject to a suite of conditions to be met prior to commencement of works and is subject to clearances by relevant agencies and final approval by the [Commission] prior to the creation of titles. There is a comprehensive set of checks and balances within the approval and process that inherently prevent the prospect of a development proceeding without sewer in the manner alluded by the [Commission].
Therefore, the combination of information and controls that are the sewerage proposal[,] the advice from the Water Corporation dated 6 November 2013 and the proposed conditions of approval cumulatively meet the fundamental test of there being sufficient confidence that the subdivision can and will be sewered in accordance with the prescribed standards in the event that the subdivision proceeds.
In the event that the applicant is unable to reach commercial terms (for the provision of sewerage services) with the Water Corporation or another licensed service provider the subdivision will not be able to proceed (as is the case for water, electricity and all other key infrastructure) and the issue of a conditional subdivisional approval will not represent any environmental, economic or other harm or risk to the community or the State.
44Mr Pettit submits that it is not appropriate to grant subdivision approval at this stage of the evolution of the CWMS for essentially five reasons. First, because there is no service provider 'signed up'. However, for reasons discussed earlier, it is adequate in this case that the Water Corporation has committed to being the service provider subject to commercial terms.
45Secondly, because of the 'relative novelty' of the proposed system in Western Australia. In particular, Mr Pettit submits that the system is novel because each ATU must deliver non‑septic effluent to the sewer and because the Water Corporation has no experience in connecting such a system with its sewerage system.
46However, Ms Buck gave evidence, which was not questioned or contradicted, that similar systems have operated in South Australia for some time. Furthermore, the Water Corporation has agreed to be the service provider subject to commercial terms. It did not refuse to be service provider because of the novelty of the system in Western Australia. Further, because of the agreed conditions, the Water Corporation must first approve the engineering plans and enter into arrangements so that the CWMS is available to all lots. The Water Corporation must also approve the connection to the Anniebrook Wastewater Treatment Plant.
47Thirdly, Mr Pettit submits that the site is located in an environmentally sensitive area, namely, the LeeuwinNaturaliste coastal region. However, although the elements of the CWMS have been known to the Commission since about August 2012, and although it has been clear since at least December 2012 that Canal Rocks seeks approval of the subdivision application subject to implementation of the CWMS, the Commission called no qualified evidence in relation to potential health or environmental harm associated with the proposed sewerage system.
48Furthermore, unlike the adjoining Smiths Beach Resort development, the proposed subdivision does not involve any onsite wastewater disposal in a sensitive environment.
49Fourthly, Mr Pettit suggests that 'the public purse may be tapped' in that public expenditure will be incurred in the assessment and approval of the details of the sewerage system which may be wasted if it and the subdivision does not proceed. However, as Mr Howard said, the Water Corporation is a commercial entity and required to operate in a commercial manner and it has agreed to enter into discussions about implementing the CWMS as the service provider subject to commercial terms. Furthermore, while the Commission may incur public funds in the clearance of conditions, that is its public function, to facilitate orderly and proper development.
50Finally, Mr Pettit relies on the evidence of Mr Vince McMullen, a town planner and the Director in the Policy, Strategy and Projects Division of the Department of Planning, that there is a risk if subdivision approval is granted that the lots may be presold and, if the subdivision is not carried out because the CWMS is cost prohibitive, the purchasers will have to pay a deposit in the expectation that titles will be issued but will not receive title. Mr McMullen is also concerned that the Commission may then be placed under pressure to prematurely clear conditions of approval or to reach some other arrangements for the fulfilment of a condition.
51However, there is always a risk of pre‑selling in the case of a conditional subdivision even though there is no certainty that conditions will be cleared. Furthermore, while, as Mr McMullen says, a purchaser carrying out due diligence enquiries will attach substantial weight to the Commission's approval, they are also likely to attach significant weight to the extensive conditions in relation to sewerage which must be cleared before site works can be carried out, and certainly before any titles can be issued. Given the careful attention that the Commission has given to this matter and the detailed and exacting nature of the 'without prejudice' draft conditions, it is highly unlikely that the Commission will prematurely clear conditions or reach some other arrangement for the fulfilment of conditions.
52Finally, we note that although adverse planning precedent was mentioned in the Commission's reasons for refusal, no argument of adverse planning precedent was advanced before us and, in any case, our findings show that the subdivision is acceptable in relation sewerage provision for the site.
53For these reasons, we determine that conditional subdivision approval should be granted subject to the proposed and agreed conditions.
Conditions
54Before making final orders, we will hear counsel on the modifications to two conditions sought by Canal Rocks, which are conditions 18 and 21A.
55[Counsel addressed in relation to the disputed conditions. Canal Rocks accepted the terms of the Commission's revised condition 21A, leaving only the dispute between the parties in relation to condition 18 (and a related dispute in relation to condition 25 which emerged during counsels' addresses).]
56Canal Rocks disputes the final sentence of proposed condition 18 and paragraph a) of condition 25. These provisions preclude the location of any sewerage pump station in the proposed foreshore reserve to be created by the approved subdivision.
57We accept the Commission's submission on this point that the sewerage pump station should not be located within the proposed foreshore reserve for essentially the reasons advanced by Ms Ide for the Commission. Namely, firstly, that this area is principally intended for public access and recreation; and secondly, that there is a risk of coastal erosion and essential infrastructure should not, unless absolutely necessary, be located in such an area. The infrastructure is not a 'private infrastructure' in the sense argued for the Commission, because there would be a public benefit ‑ as we have found in our principal reasons ‑ for other development in the area. Nevertheless, such infrastructure should not be located in such a location.
Orders
58The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 26 February 2013 to refuse subdivision approval for the subdivision of Lot 4131 Smiths Beach Road, Yallingup is set aside and a decision is substituted that subdivision approval is granted subject to the conditions in Attachment A.
3.The prescribed period for the purposes of s 145 of the Planning and Development Act 2005 (WA) commences on 7 June 2013.
Attachment A
Pursuant to s 157 of the Planning and Development Act 2005 (WA), approval of the plan of subdivision is not to be taken as approval by the responsible authority under the planning scheme of the carrying out of the works mentioned in s 157(1) of the Act until the Western Australian Planning Commission (WAPC) has certified that conditions 6, 7, 19, 20, 21A, 22A, 25, 29, 32, 38, 50, 51, 59, 64, 65, 71, 72 and 73 have been fulfilled.
Subdivision
1.The subdivision to be carried out in a single stage. (LG)
2.[deleted]
3.[deleted]
4.[deleted]
5.[deleted]
Design and settlement
6.Prior to the commencement of site works, detailed design and settlement guidelines (Design and Settlement Guidelines) are required for all buildings and structures on Lot 4131 and must be lodged with, and if acceptable, be approved by the City of Busselton. The Design and Settlement Guidelines must ameliorate the visual impact of development and:
a)set appropriate themes and standards for building location and orientation, built form, building heights, scale, roof pitch, external colours and materials, signage, curtilage and landscaping including retention of significant flora, vehicle parking and access and fencing;
b)with respect to proposed Lot 4, provide for access and egress, and an address and entry statement or portal to the road, and a suitable refuse collection area that is coordinated and responsive to the design on proposed Lots 2 and 3;
c)in relation to Lots 19, 20 and 55, provide for a uniform design treatment interface to address the adjacent public open space;
d)provide a system of pedestrian easements across the tourist lots to facilitate permeability and access to public open space, community facilities, the village centre and public roads;
e)have regard to the matters referred to in:
i)cl 27 of the Planning Scheme No 20; and
ii)the City of Busselton Reflective Building Materials Policy;
f)include an integrated village centre that provides for an active frontage immediately abutting the northernmost boundaries of proposed Lot 1. The village centre is to include an area for pedestrians to congregate (including seating) and may include a focal or feature point. The village centre is to act as transitional area between the public foreshore and private spaces. A site planning diagram should be included for the integrated village centre;
g)a maximum of 500m² of ancillary retail floor space integrated with the tourist and recreational facilities of the resort and village centre and provide for local convenience shopping and services; and
h)the stand‑alone retail floor space within the identified developable land area shall not exceed 700m² of net lettable area. (LG)
7.Prior to commencement of site works, a detailed plan identifying building envelopes on all lots on the approved plan of subdivision is to be prepared in consultation with the City of Busselton. Spot heights are to be provided for each building envelope to establish natural ground level as a reference for building height limits. (LG)
8.Notification in the form of a Section 70A Notification, pursuant to the Transfer of Lands Act 1893 (WA) is to be placed on the Certificates of Title of the proposed lot(s) advising that development of lots is subject to the provisions of the:
a)Special Height Control Area Map forming part of the adopted and endorsed Development Guide Plan for Lot 4131 (dated 21 January 2011) (DGP);
b)Design and Settlement Guidelines; and
c)fire management plan,
and requiring compliance with that map, those guidelines and that plan. (LG)
9.A restrictive covenant, pursuant to s 129BA of the Transfer of Land Act 1893 (WA) is to be placed on the Certificates of Title of the proposed lot(s) advising of the existence of a restriction on the use of the land relative to the Design and Settlement Guidelines and the prohibition of boundary fencing. Notice of the restriction is to be included on the deposited plan. (LG)
10.[deleted]
11.Easement(s) in accordance with s 195 and s 196 of the Land Administration Act 1997 (WA) for the benefit of the City of Busselton are to be placed on the Certificates of Title of the proposed lot(s) specifying access and drainage rights as laid out on the approved plan. Notice of the easement(s) is to be included on the deposited plan. (LG)
12.A suitable, durable and landscape‑sensitive fence design to be designed and implemented by the proponent needs to be acceptable to the Department of Environment and Conservation to ensure pedestrian access from the residential area to the western coast across the sensitive granite heath vegetation community is prevented and directed to suitable pathways shown on the Foreshore Management Plan. The installed fence shall meet engineering design standards to achieve its purpose and long‑term durability in the marine coastal environment of the site. (DEC)
Open Space
13.The 21.3813 hectare depicted as 'National Park Extension' in the plan of subdivision shall be transferred to the Crown to be incorporated into the Leeuwin‑Naturaliste National Park, such land to be ceded free of cost and without any payment of compensation by the Crown. (DEC)
14.The surveyed boundaries of the development, the national park and the national park extension should be clearly marked with durable and fire‑resistant marker posts every 150 to 200 metres where fencing is not on the boundary to aid future identification of the national park boundaries. (DEC)
15.The proposed reserves shown on the approved plan of subdivision being shown on the deposited plan as a 'Reserve for Recreation' and vested in the Crown under s 152 of the Planning and Development Act 2005 (WA) is to be ceded free of cost and without any payment of compensation by the Crown. (LG)
16.A maintenance agreement for all public open space areas is to be prepared and endorsed by the City of Busselton. The agreement shall ensure maintenance responsibilities are undertaken by the developer for a three‑year period. (LG)
17.Uniform fencing along the boundaries of all of the proposed lots abutting public open space is to be constructed. (LG)
Utilities and services
18.All utilities and services on Lot 4131 shall be contained within the identifiable developable land area or, where utilities and services are outside the identified developable land area, they shall be within a public road reserve or easement specifically created for that purpose. No sewerage pump station is to be located within the foreshore reserve to be created by the approved subdivision. (LG)
19.Prior to approval of engineering design plans and commencement of site works, arrangements made with the Water Corporation or an alternate licensed service provider so that provision of a suitable water supply service will be available to lot(s) shown on the approved plan of subdivision. (LG, WAPC)
20.Prior to commencement of site works, engineering design plans must be approved by and arrangements must be made with the Water Corporation or an alternate licensed service provider to the satisfaction of the WAPC so that the Community Wastewater Management Scheme (Syrinx, Report No RPT – 1023 V3, 13 August 2012) will be available to the lot(s) shown on the approved plan of subdivision. (LG, WC, WAPC)
20A.Prior to approval of engineering design plans, arrangements must be made with the Water Corporation to the satisfaction of the WAPC for connection of the sewerage system to the Anniebrook Wastewater Treatment Plant, Dunsborough. (WC, WAPC)
20B.Prior to commencement of site works, arrangements must be made with the City of Busselton to the satisfaction of the WAPC for construction and commissioning of appropriate aerobic treatment units (ATUs) on each lot to be created. (DoH, WC, LG, WAPC)
21.The provision of easements for existing or future water, sewerage and/or drainage infrastructure as may be required by the Water Corporation and/or other relevant service provider being granted free of cost to that body. (LG)
21A.Prior to commencement of site works, a management plan must be prepared and adopted to the satisfaction of the WAPC, City of Busselton and the licensed service provider to ensure ongoing maintenance of all components of the sewerage system, including ATUs located on private land. The plan must stipulate roles and responsibilities for, and timing of, implementation, and include arrangements and mechanisms for:
i)appointment, management, funding and payment of appropriate contractors for monitoring, maintenance and repair purposes;
ii)ensuring access by regulators and operators or contractors to ATUs for monitoring, maintenance and repair purposes, including use of easements‑in‑gross on titles;
iii)notifying prospective purchasers of lots subject to the management plan of the plan and its requirements, including ongoing payment of relevant costs for monitoring, maintenance and repair purposes;
iv)binding landowners and successors in title to the regular monitoring, maintenance and repair of ATUs and other components of the system, and payment of ongoing costs; and
v)recording of relevant information concerning the content and operation of the plan on memorials on titles and in management statements of strata titled subdivision and development; and
vi)variation of the management plan in the future, if required, including in relation to management, maintenance and repair costs.
The management plan prepared and adopted in accordance with this condition must be implemented. The management plan may require elements of it to be implemented prior to the commencement of site works, which implementation shall be to the satisfaction of the WAPC, the City of Busselton and the licensed service provider. (DoH, WC, LG, WAPC)
22.The transfer of land as a Crown Reserve, free of cost to the Water Corporation and/or other relevant service provider for the purposes of the provision of water and sewerage infrastructure, if required. (LG)
22A.Prior to approval of engineering design plans and commencement of site works, arrangements must be made at the subdivider's cost for land tenure in respect of any land required for infrastructure and site works. (This condition is not to be taken as approval of such arrangements.) (RDL, WAPC)
23.The land is to be provided with an adequate outlet drainage system at the applicant/owner's cost. (LG)
24.Drainage easements as may be required by the City of Busselton for drainage infrastructure shown on the deposited plan as such and granted free of cost and vested in that local government under s 167 of the Planning and Development Act 2005 (WA). (LG)
25.Prior to commencement of site works, a stormwater and drainage management plan shall be:
a)prepared, which excludes the foreshore reserve to be created by the approved subdivision from containing or being used for a sewerage pump station, and identifies the locations and dimensions of all proposed infiltration basins and sumps;
b)submitted to and, if acceptable, approved by the City of Busselton and the Department of Water; and
c)implemented by the applicant/owner to the satisfaction of the City of Busselton. (LG)
26.An urban water management plan is to be prepared prior to the commencement of ground‑disturbing activities, to the satisfaction of the WAPC on advice of the Department of Water. (DoW, LG)
27.The urban water management plan shall be implemented by the landowner, including construction of the identified wastewater, stormwater and groundwater management systems, to the satisfaction of the WAPC on advice of the Local Government. (LG)
28.Refuse collection areas to be provided to the satisfaction of the City of Busselton. (LG)
29.Prior to the commencement of any site works associated with the implementation of any approved development, subdivision or strata subdivision, a management plan for the Western Ringtail Possums shall:
a)be prepared and submitted to the Department of Environment and Conservation for approval prior to implementation of this plan; and
b)once approved, be implemented to the satisfaction of the Department of Environment and Conservation. (DEC)
30.Arrangements made to the satisfaction of the WAPC and to the specification of Western Power for the provision of an underground electricity supply service to the lot(s) shown on the approved plan of subdivision. (Western Power)
31.Transfer of land as a Crown Reserve, free of cost, to the Western Power Corporation for the provision of electricity supply infrastructure. (Western Power)
Roads, parking and access
32.Prior to the commencement of site works, a traffic and parking strategy shall be:
a)prepared by a suitably qualified traffic engineer, which:
i)shows the required upgrading works for the local road system, including Canal Rocks Road, Smiths Beach Road and the intersection of Canal Rocks Road and Caves Road;
ii)shows the staging of these works relative to the staging of the development, and identify provision of or contribution to those works by the developers of the respective stages;
iii)assesses the future public, private residential and tourist car park requirements generated by the development proposed in the DGP; and
iv)demonstrates that sufficient foreshore parking or alternative access is provided for tourist and residential development as well as the demands of visitors and the general public;
b)submitted to the City of Busselton and, if acceptable, approved by the City of Busselton and Main Roads WA; and
c)implemented to the satisfaction of the City of Busselton prior to the City of Busselton clearance of any condition of any approval granted for the subdivision or strata subdivision of land within Lot 4131. (LG, MRWA)
33.Satisfactory arrangements made with Main Roads WA for a contribution towards the ultimate upgrading of the Canal Rocks Road/Caves Road intersection to a Type C intersection to the satisfaction of the WAPC. The arrangements to include a requirement that the applicant provide a detailed design of the intersection to the satisfaction of Main Roads WA for the purposes of estimating and allocation of costs. (MRWA)
34.The cul‑de‑sac head adjoining Lots 2, 3 and 4 designed and constructed to the satisfaction of the City of Busselton. (LG)
35.Those lots not fronting an existing road provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system, and such road(s) being constructed and drained at the applicant/owner's cost. (LG)
36.Roads that have been designed to connect with existing or proposed roads abutting the subject land are to coordinate such that the road reserve location and width match and connect seamlessly. (LG)
37.Street corners within the subdivision are to be truncated to the standard truncation of 8.5 metres. (LG)
38.A detailed plan demonstrating dual use path/cycleway design to the specifications of the local government is to be submitted by the applicant/owner prior to the commencement of site works. (LG)
39.The dual use path/cycleway shall be constructed by the applicant/owner. (LG)
40.Suitable arrangements made with the City of Busselton for the provision of vehicular crossover(s) to service the lot(s) shown on the approved plan of subdivision. (LG)
41.The battleaxe accessway(s) constructed and drained at the applicant/owner's cost to the specifications of the City of Busselton. (LG)
42.[deleted]
43.A restrictive covenant, pursuant to s 129BA of the Transfer of Land Act 1893 (WA) is to be placed on the Certificates of Title of proposed Lot 30, advising of the existence of a restriction on the use of the land, namely, that vehicular access is restricted to the battleaxe access leg. Notice of the restriction is to be included on the deposited plan. (LG)
44.[deleted]
Construction and implementation
45.A dieback hygiene management plan shall be prepared and submitted by the applicant/owner for approval by the City of Busselton, which:
a)proposes measures to ensure that dieback disease is not spread from, or to, Lot 4131 during development;
b)conforms with the Department of Environment and Conservation's publication entitled 'Best Practice Guidelines for the Management of Phytophthara cinnamoni';
c)conforms with the dieback requirements contained in section 3 of the City of Buselton's publication entitled 'Engineering Technical Standard's Specifications'; and
d)shall be implemented by the applicant/owner to the satisfaction of the City of Busselton. (LG)
46.Work associated with the implementation of any approved development, subdivision or strata subdivision must not commence until the dieback hygiene management plan is approved by the City of Busselton. (LG)
47.A comprehensive community facilities infrastructure contribution plan shall:
a)be prepared by the applicant/owner, which identifies the basis for determination of contributions to be made to fund community facilities and infrastructure within the locality required as a direct result of the development of the land;
b)include provision of a community purpose facility with a minimum floor area (GFA) of 200m² in association with the village centre or as part of the proposed multipurpose surf club building;
c)be submitted to, and approved by, the City of Busselton prior to the lodgement of an application for planning approval or building licence and prior to the clearance of any subdivision or strata subdivision of land within Lot 4131; and
d)be implemented by the applicant/owner to the satisfaction of the City of Busselton.
48.To discharge its obligations under that part of the comprehensive community facilities infrastructure contribution plan referred to by condition 47(b), the applicant is to enter into a legally binding agreement with the City of Busselton to pay $1 million prior to clearance of titles as the applicant's total contribution towards, and in discharge of, its obligations to provide each of:
a)200m² towards a community purpose facility to be built within an integrated community purpose and multipurpose lifesaving facility (the integrated facility); and
b)a contribution towards the provision of the integrated facility. (LG)
49.A revegetation, rehabilitation and landscaping plan for the identified developable land area shall be:
a)prepared by the applicant/owner and submitted to the City of Busselton for approval; and
b)implemented by the applicant/owner to the satisfaction of the City of Busselton. (LG)
50.Prior to commencement of site works, a landscape strategy plan for the road reserves, including Smiths Beach Road where it adjoins Lot 4131, and public open space areas, shall be prepared by the applicant/owner, which:
a)indicates the location and species of all trees to be removed and/or retained;
b)indicates the location and type of fencing to be installed, including where appropriate to clearly delineate open space and prevent informal vehicle access, parking on and use of open space and adjacent national park and foreshore reserves;
c)indicates the location and type of reticulation to be installed;
d)indicates the location and type of paving to be installed; and
e)includes a plant schedule nominating each species, the spacing of species, the numbers of plants required, the size of each plant to be used at the time of planting and the anticipated height of each plant at maturity.
The landscape strategy plan shall be:
a)submitted to and, if acceptable, approved by the City of Busselton with advice from the Department of Environment and Conservation;
b)the subject of a management agreement between the owner and the City of Busselton; and
c)implemented by the applicant/owner to the satisfaction of the City of Busselton with advice from the Department of Environment and Conservation. (LG)
51.Prior to commencement of any works on Lot 4131, a construction management plan shall be:
a)prepared by the applicant/owner, which details the technical, physical and contractual measures to minimise environmental impacts during construction and post‑construction phases of subdivision and development;
b)submitted to and, if acceptable, approved by the City of Busselton; and
c)implemented by the applicant/owner to the satisfaction of the City of Busselton. (LG)
52.A dust management plan is to be:
a)prepared by the applicant/owner and submitted to and, if acceptable, approved by the City of Busselton;
b)implemented by the applicant/owner at subdivision and each and every stage of development to the satisfaction of the City of Busselton.
53.[deleted]
54.Installation of services between Lot 4131 and external connection points shall be undertaken in accordance with a construction plan approved by the City of Busselton, the primary objective of which is to ensure that landscape values of the road reserves, declared rare flora and remnant vegetation, and the road pavements of the proposed service routes are not degraded by installation of service connections off site. (LG)
55.Where the installation of services within the road reserve is constrained as a consequence of the presence of remnant vegetation or declared rare fauna, the owners of land adjoining the service route should be consulted to ascertain whether an alternative alignment of the servicing can be provided. (LG)
56.The land being filled and/or drained at the subdivider's cost and any easements and/or reserves necessary for the implementation thereof, granted free of cost. (LG)
57.The applicant a geotechnical report certifying that any filling or backfilling has been adequately compacted and any necessary Section 70A Notification has been imposed on the deposited plan. (LG)
58.The land graded and stabilised. (LG)
59.The applicant/owner is to provide a geotechnical report certifying that the land is physically capable of development prior to the commencement of subdivision works. (LG)
Fire management plan
60.A memorial is to be placed on the Certificate of Title for those lots affected by the fire management plan advising of the requirement to comply with the approved fire management plan and the owner's responsibility to maintain fire protection measures and emergency access to an appropriate standard. (LG)
61.The applicant/owner shall implement the fire management plan – Lot 4131 Smiths Beach Road, Yallingup – October 2011 prepared by Michael Swift and Associates to the satisfaction of the City of Busselton in consultation with the Department of Environment and Conservation and Fire and Emergency Services Authority. (LG)
62.[deleted]
63.The detailed Design and Settlement Guidelines and the revised fire management plan shall refer to air conditioners (if allowed) needing to be of a suitable design to prevent the possibility of bushfire embers being drawn into and igniting houses. (LG)
64.Prior to commencement of site works, the conflicts between the fire management plan requirements for vegetation management in bushfire buffer areas and the detailed Design and Settlement Guidelines, which states that vegetation in these areas is to be retained, shall be ameliorated. Conflicts about vegetation management between the fire management plan and the detailed Design and Settlement Guidelines shall be resolved without compromising bushfire protection standards to the satisfaction of the City of Busselton in consultation with the Department of Environment and Conservation and the Fire and Emergency Services Authority. (LG)
Foreshore reserve
65.The foreshore reserve boundary to be surveyed, pegged and clearly identified by the applicant/owner prior to the commencement of any works on the subject land. (LG)
66.The foreshore reserve is not to be used for any drainage works or functions, excluding absorption structures and subsurface stormwater drainage and that do not diminish the capacity of the area for public use. (LG)
67.A foreshore reserve as demarcated on the approved plan, as established by survey, being shown on the deposited plan as a 'Reserve for Foreshore Management and Recreation' and vested in the City of Busselton under s 152 of the Planning and Development Act 2005 (WA), such land to be ceded free of cost and without any payment of compensation by the Crown. (LG)
68.The foreshore management plan shall be implemented by the applicant/owner to the satisfaction of the City of Busselton prior to the clearance of titles. (LG)
69.The applicant/owner into a legally binding deed with the City of Busselton for the care, maintenance and management of the foreshore reserve for a period of three years commencing upon practical completion of all recommended and required works. (LG)
70.[deleted]
71.Prior to commencement of subdivision works, a foreshore management plan shall be prepared by the applicant/owner under cl 5.1(x) and cl (xi) of State Planning Policy No. 2.6 - State Coastal Planning Policy. The foreshore management plan shall be approved, if acceptable, by the City of Busselton, with advice from the WAPC and Department of Environment and Conservation. The foreshore management plan shall:
a)include Crown allotments 5043 and 1410, and the area designated in the DGP for national park extension that is adjacent to the coast;
b)contain a schedule of works, public facilities, infrastructure and amenities provision and implementation schedule, including a detailed design specifications and implementation section. The implementation schedule in the foreshore management plan is to be in accordance with the implementation schedule attached and marked 'C';
c)identify appropriate siting of the proposed multipurpose surf club building;
d)identify those with responsibility for implementation of the plan; and
e)provide for the appropriate upgrading of the Cape to Cape Walk Trail within and adjacent to Lot 4131. (LG)
Vegetation
72.Measures taken to ensure vegetation within the proposed national park extension is protected prior to the commencement of site works. (DEC)
73.Measures taken to ensure the identification and protection of any vegetation on the site worthy of retention prior to commencement of site works. (LG)
74.Remnant vegetation (that is, native vegetation remaining once clearing consistent with the revegetation, rehabilitation and landscaping and landscape strategy plans has occurred) on Lot 4131 that is to be retained in the development is to be protected in perpetuity by covenant or another similar measure which shall be established to the satisfaction of the City of Busselton. (LG)
75.Covenants are to be placed on all lots to prohibit boundary fencing except those boundaries common with public accessways and public open space where open style fencing only may be permitted where consistent with the Design and Settlement Guidelines required by condition 6. (LG)
76.A soil erosion and sediment control plan is to be prepared and implemented to the satisfaction of the City of Busselton. (LG)
'C'
TABLE 3 PROPOSED MANAGEMENT MEASURES FOR THE SECTORS OF THE CAPE TO CAPE WALK TRAIL – 9 October 2011
SECTOR PROPOSED MANAGEMENT MEASURES FUNDING AND MANAGEMENT RESPONSIBILITY MONITORING AND TIMING Northern Trail Head A
• Align the location of the Trail Head with end of development. This allows for passive surveillance of the trail head and reinforces the change from a settlement to a natural area.
• Remodel existing road converting to a universal access path with a width of 2.5m.
• No specific trail head parking to be located and the path to have traffic barriers, however emergency vehicle access is required.
• Proponent funded
• Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan.
• Shire of Busselton and/or Department of Environment and Conservation managed thereafter
To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years
Northern Trail Head B
• Access to lookout.
• Terrain management - steps or trail alignment.
• Signage: - trail classification change (Class 21 to Class 3) - distance, time and directional information - warnings (strong winds, large waves, unstable rocks and cliffs) - National Park information - rules and regulations (keep to trail)
• Proponent funded
• Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan.
• Department of Environment and Conservation managed thereafter
· To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years.
Cape to Cape Walk Trail
• Signage: - Risk - Information - Keep on Track
• Terrain management - steps may be required or trail realignment.
• Surface treatment / materials to be low key.
• Identify opportunities for lookout and interpretation.
• Align on best alignment for the trail.
• Ensure no incursion back to development area through vegetation over headland.
• Key issue: management of land holding means alignment may change.
• Signage and Terrain Management Proponent funded
· Proponent monitored and managed for the first three years upon practical completion of all works/actions required of the proponent by this foreshore management plan.
• Department of Environment and Conservation managed
· To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years.
Northern Lookout
• Universal access to lookout. • Interpretive and information signage: - Trail classification change - Distances / times
• Co-ordinate with DEC Leeuwin Naturaliste Interpretation Plan.
• Look out to be created at ground level not elevated with no shade structure.
• Incorporate a space for viewing and separate seating.
• Proponent funded
• Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan.
• Department of Environment and Conservation managed thereafter
To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years.
Link to Canal Rocks
• Trail definition - way marking.
• Cape to Cape doesn't currently link to Canal Rocks. This is not an issue that can be addressed in the FMP as is off-site.
• Department of Environment and Conservation funded
• Department of Environment and Conservation managed
To be determined by Department of Environment and Conservation
Development Interface
• Localised fencing.
• Associated signage.
• Car park facilities• Proponent funded
• Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan.
• Shire of Busselton and Department of Environment and Conservation managed thereafter
To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years.
TABLE 6 PROPOSED MANAGEMENT MEASURES FOR THE FORESHORE RESERVE ‑ 6 October 2011
| Management Measure | Responsibility | Monitoring | Timing | |
| M1 | Implement a weed control program that prioritises control of weeds in rehabilitation areas using appropriate weed control methods. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton managed thereafter. | Monitor weed growth on an annual basis after rehabilitation has commenced for up to three years from completion of development of Location 413 and implement appropriate control methods as necessary. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M2 | Rehabilitate areas through planting of native species in planting densities as recommended in Table 4. | • Proponent funded • Proponent monitored and managed in accordance with this foreshore management plan monitoring and review provisions for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton managed thereafter. | Use the performance indicators described in Section 6.5 to quantify the success of the rehabilitation program. Conduct ongoing monitoring of the overall health of the existing foreshore vegetation for the duration of the implementation and maintenance period as described in Section 6.9 and 6.10. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M3 | Install tree guards as required. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton managed thereafter. | Ongoing monitoring of the tree guards to identify and replace those tree guard which are defective or removed. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M4 | Paths and trails identified in Figures 4, 5 and 6 will be constructed and will conform to the Australian Standards for Walking Track Classification: AS 2156.1-2001. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton and/or Department of Environment and Conservation managed thereafter. | Ongoing monitoring to ensure all paths and trails meet this standard. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three |
| M5 | Close off existing informal access paths with revegetation and logs or brush. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Department of Environment and Conservation managed thereafter. | Ongoing monitoring to review success of closed off access ways. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M6 | Passive recreational grassed areas will be created with associated BBQ facilities, car parking, drainage provisions, access, fencing, signage and bins. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton and Department of Environment and Conservation managed thereafter. | Ongoing monitoring to replace defective, damaged or removed facilities within the foreshore. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M7 | Discourage random public access into the dune environment by installing uniform fencing as shown on Figures 4, 5 and 6. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton managed thereafter. | Ongoing monitoring to replace defective, damaged or removed fences. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M8 | Install educational, informative and safety signage at key locations identified on Figures 4, 5 and 6. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton and Department of Environment and Conservation managed thereafter. | Ongoing monitoring to replace defective, damaged or removed signs. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M9 | Provide bins within the Foreshore Reserve. | • Proponent funded • Proponent monitored and managed for the first 3 years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton managed thereafter. | Ongoing monitoring to replace defective, damaged or removed bins. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M10 | Install underground stormwater storage facility under 58 bay car park and overflow area into adjacent grassed areas | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton managed thereafter. | Ongoing monitoring to check drainage system is functioning as intended and replace defective, damaged or removed components. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M11 | Car parking is to be installed within the Foreshore Reserve according to Figure 5. | • Proponent funded • Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Shire of Busselton and Department of Environment and Conservation managed thereafter. | Ongoing monitoring to check and replace defective, damaged or removed car park kerbing, surfacing and line markings. Refer to Table 5. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
| M12 | Provisions will be made for the design and construction of a Multi-Functional Surf Lifesaving Facility | • Funding responsibility will be jointly with the proponent, Shire of Busselton and possibly Surf Lifesaving WA (SLWA) and Government Community Grants. Final funding breakdown on approval of building. • Design (Development Application Standard) to be managed by the Proponent. • Development Application to be managed by the Shire of Busselton. • Refinement of design (if required) to be managed by the Shire of Busselton. • The management of the facility to be managed by the Shire of Busselton. | N/A Currently subject to funding proposal. If funding proposal agreed, dot point 2 to be deleted and timing adjusted accordingly. | • The extent of the proponent's financial contributions/works in kind to be agreed during the detail design and approval process and to be implemented or secured by bond prior to the issue of titles. |
| M14 | Cape to Cape walk trail | • Proponent funded •Proponent monitored and managed for the first three years upon practical completion of all works/actions required by this foreshore management plan. • Department of Environment and Conservation managed thereafter. | Ongoing monitoring to review success of walk trail. | • To be implemented in accordance with subdivision condition requirements prior to the issue of titles and managed thereafter for three years. |
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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