ERLAND FRANCIS AND ROSLYN HAPP and CITY OF BUSSELTON
[2024] WASAT 76
•25 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ERLAND FRANCIS HAPP AND ROSLYN HAPP and CITY OF BUSSELTON [2024] WASAT 76
MEMBER: MS C BARTON, MEMBER
MR R POVEY, MEMBER
HEARD: 13-14 MAY 2024
DELIVERED : 25 JULY 2024
FILE NO/S: DR 159 of 2022
DR 197 of 2022
DR 152 of 2023
BETWEEN: ERLAND FRANCIS HAPP AND ROSLYN HAPP
Applicants
AND
CITY OF BUSSELTON
Respondent
Catchwords:
Town planning - Development application - Unauthorised development - Rural residential zone - Clearing of native vegetation - Habitat disturbance - Bushfire prone area - Acceptable solution - Tolerable loss - Weather unavoidable development - Vulnerable land use - Landscape value area - Retrospective planning approval - Whether development application accompanied by adequate information - Direction notices - Direction to remove development and restore land - Direction to immediately stop development - Natural character of the area - Scenic character of the locality
Legislation:
Biodiversity and Conservation Act 2016 (WA)
City of Busselton Local Planning Scheme No 21, s 4.39.1, s 4.39.2, s 4.5.4, s 4.5.4(a), s 4.5.4(b), s 5.4.2(c), cl 3.5.2, cl 5.4.2, cl 5.4.2(a), cl 6.1, Sch 1, Div 2
Environment Protection Biodiversity Conservation Act 1999 (Cth)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, cl 1, cl 37(1)
Planning and Development Act 2005 (WA), s 214, s 214(2), s 214(3), s 241(1)(a), s 252(1), s 255(1)
Rights in Water and Irrigation Act 1912 (WA)
Result:
Application in all proceedings dismissed
Category: B
Representation:
Counsel:
| Applicants | : | In Person |
| Respondent | : | C Slarke |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Drake and City of South Perth [2005] WASAT 271
Kakulas and City of Stirling [2013] WASAT 168
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Morea Architects and Town of Vincent [2006] WASAT 263
Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Stock and Shire of Victoria Plains [2005] WASAT 347
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicants, Mr and Mrs Happ, live in a remarkable part of the world. They grow grapes, produce wine, and make pottery on their rural residential property on Commonage Road, Quindalup. They have worked hard to establish successful businesses. But they do not believe that planning laws apply to the construction of tourist chalets on their land.
In August 2021, members of the local community complained to the City of Busselton when native vegetation was cleared at the applicants' property. By March 2022, the applicants had built three chalets, from shipping containers. Because the structures had been erected without planning approval, the City directed them to stop the development, remove the chalets and restore the native vegetation which the applicants had cleared. The applicants challenged the directions in the Tribunal. Following mediation, the applicants applied for retrospective planning approval for the erection of seven chalets, but the City declined to grant it. The applicants also seek review of that decision.
For the reasons that follow, we have concluded that the correct and preferable decision is to affirm the City's decisions and dismiss the applications for review.
Background
Certain matters were not in dispute between the parties. We make the findings set out in this paragraph in relation to those matters:
(a)On 1 September 2022, the City issued two directions notices (Notices) to the applicants pursuant to s 214 of the Planning and Development Act 2005 (WA) (PD Act).
(b)In proceeding DR 159 of 2022, the applicants seek review of the notice issued by the City pursuant to s 214(3) of the PD Act (s 214(3) Notice) which directed the applicants to remove the development which had commenced at Lot 4526 (No 575) Commonage Road, Quindalup (subject site) without approval and included unauthorised clearing of the subject site as identified in the s 214(3) Notice.[1] The s 214(3) Notice also required the applicants to restore the subject site to its condition immediately before the development commenced.
[1] Exhibit 1, page 591. The review proceeding in DR 159 of 2022 was commenced pursuant to s 255(1) of the PD Act.
(c)In proceeding DR 197 of 2022, the applicants seek review of the notice issued by the City pursuant to s 214(2) of the PD Act (s 214(2) Notice) which directs the applicants to immediately stop and not recommence the development.[2]
[2] Exhibit 1, page 585. The review proceeding in DR 197 of 2022 was commenced pursuant to s 255(1) of the PD Act.
(d)On 25 January 2023, following mediation, the applicants lodged an application with the City, seeking development approval for the chalets (development application).[3] The development application sought approval for '[seven] chalets plus outdoor reception area with stage and retractable roof'. On 14 April 2023, the applicants confirmed that the outdoor reception area component was removed from the development application and, consequently, does not form part of the review proceeding.
[3] Exhibit 1, page 91, para 20; ts 69, 13 May 2024.
(e)On 15 August 2023, the City refused to grant approval for the development for four reasons:[4]
[4] Exhibit 1, pages 93 - 94, para 28.
1.The proposed development is not consistent with the City of Busselton Local Planning Scheme No.21 as:
a.the proposed location of the development is not consistent with the special aesthetic of the Site and would detract from the natural character of the area, contrary to objectives (c) and (f) of the Rural Zone;
b.the location of the development has already and would further result in the removal of significant areas of native vegetation that prior to development was classified as being in 'good' and 'very good' condition in the Lot 4526 Commonage Road Quindalup, Level 2 Flora and Fauna Survey dated November 2014, prepared by Onshore Environmental. This is contrary to objective (c) of the Rural zone;
c.the siting of buildings and clearing of vegetation for the development is not compatible with the maintenance and enhancement of the existing scenic character of the locality, with the vegetation removal resulting in significant visual effects of clearing for the development and habitat disturbance. This is contrary to clause 5.4 Landscape Value Area.
2.The siting of building and clearing of vegetation for the development does not comply with State Planning Policy 6.1 Leeuwin-Naturaliste Ridge Policy (SPP6.1) in that the Applicant has been unable to demonstrate that the development is in keeping with the overall objectives, Policy Statements, Land Use Strategies or Implementation of SPP6.1, in particular PS 3.2, 3.4, and 3.6.
3.The City is not satisfied that the bushfire management issues have been satisfactorily addressed in accordance with the objectives and intent of State Planning Policy 3.7 Planning in Bushfire Prone Areas:
a.it has not suitably been demonstrated that the development avoids any increase in the threat of bushfire to people, property and infrastructure;
b.the intensification through introduction of accommodation, in particular where there is no intent to provide an Asset Protection Zone is not considered to comply with the intent of Element 5: Vulnerable Tourism Land Uses, of the Guidelines for Planning in Bushfire Prone Areas.
4.Approval of the development would be inconsistent with orderly and proper planning.
In proceeding DR 152 of 2023, the applicants seek review of the City's decision to refuse to grant approval for the development pursuant to s 252(1) of the PD Act.
The subject site and the locality
The subject site:[5]
(a)has an area of approximately 21 hectares;
(b)has road frontages to Commonage Road and Hayes Road;
(c)is zoned Rural Residential pursuant to City of Busselton Local Planning Scheme No 21 (LPS 21/Scheme);[6]
(d)is designated as a 'Landscape Value Area';[7]
(e)is within a designated bushfire prone area pursuant to State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7);
(f)has on it various other developments, largely on the northern portion, including a dwelling, vineyard, winery, dam, rural workers dwelling, pottery studio, machinery shed, water tank and cellar door; and
(g)on its southern portion (where the development is proposed), contains approximately 5.5 hectares of remnant vegetation, consisting of Jarrah-Marri woodland and associated understorey.[8]
[5] Exhibit 1, page 89, para 7.
[6] However, by virtue of cl 3.5.2 of LPS 21 and the size of the subject site being greater than 20 hectares, the land uses available in the Rural zone are applicable to the subject site.
[7] Clause 5.1 of LPS 21 provides that am area of 'Landscape Value' is a special control area and, consequently, the provisions of the Scheme applying to the special control area apply to the subject site in addition to the provisions applying to any underlying zone or reserve.
[8] Witness statement of Andrew Watts, para 26; Exhibit 1, page 243.
In terms of the broader locality, the lots surrounding the subject site are zoned Rural Residential. However, there is a vegetated reserve known as 'Hayes Reserve' located predominantly to the west of the subject site, at the corner of Commonage Road and Hayes Road, which was previously used for gravel extraction.
Mr Andrew Watts, the expert town planner engaged by the City, described the subject site as forming part of a larger rural residential area in Quindalup. Mr Watts identified the immediate context as being the subject site and the immediately adjoining rural residential lots as well as the Hayes Reserve and a restaurant/café and gallery, known as 'Goanna Café' which is accessed from Hayes Road, on the adjoining lot to the south.
Consequently, we are satisfied that the extent of the relevant locality is, in effect, its immediate context. This includes the subject site and the immediately surrounding rural residential lots (including the adjoining Goanna Café), Hayes Reserve and the adjoining section of Hayes Road.
The development
The development is for seven chalets, located in a row (south to north extending approximately 128 metres) in the southwest portion of the subject site, adjacent to the western boundary.[9] The seven chalets can accommodate up to 28 visitors and are to be let on a short-term basis for periods of no longer than 90 days.[10]
[9] Exhibit 1, page 92, para 23.
[10] Exhibit 1, page 92, para 22.
Pursuant to LPS 21, the expression 'Chalet':[11]
means a dwelling forming part of a tourist facility that is -
(a)a self-contained unit that includes cooking facilities, bathroom facilities and separate living and sleeping areas; and
(b)designed to accommodate short-term guests with no guest accommodated for periods totalling more than 3 months in any 12 month period.
[11] LPS 21, Sch 1, Div 2.
A 'chalet' is a class 'D' use at the subject site.[12] A class 'D' use in relation to a zone:[13]
(a)means a use identified in the zoning table for this Scheme (regardless of the symbol used) as a use that is not permitted in the zone unless the local government has exercised its discretion by granting development approval; but
(b)does not include a class A use[.]
[12] LPS 21, Table 1 - Zoning Table. The Zoning Table applies to all lots greater than 20 hectares in area within the Rural Residential zone as if the lot was located in the Rural zone: see cl 3.5.2 of LPS 21.
[13] Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1.
The setbacks of the chalets from the western boundary range from 6.9 metres to 11.4 metres.[14] Chalet 1 (closest to Hayes Road) is setback approximately 55 metres from the boundary with the road.
[14] Exhibit 1, page 106, para 90.
Each chalet includes two bedrooms, study, kitchen, meals and living area and a bathroom.[15] The chalets are constructed using repurposed shipping containers which are extended on one side to provide a bathroom and veranda and the exterior is clad in timber.[16]
[15] Exhibit 1, page 92, para 24.
[16] Respondent's s 24 bundle dated 31 October 2023 (Exhibit 2), pages 25 - 26.
The chalets are accessed from Hayes Road along a gravel driveway (which is also a firebreak) adjacent to the western boundary of the subject site. Surrounding the chalets is remnant native vegetation. No bushfire asset protection zone (APZ) is proposed. The remnant bushland closest to the chalets is annotated on the site plan accompanying the development application as 'low density bush to be managed in perpetuity'.[17]
[17] Exhibit 2, page 24.
In addition to the areas to be occupied by the seven chalets, an area of approximately 1,111m2 of the subject site (between Hayes Road and chalet 1) has been cleared of remnant vegetation for the purposes of an outdoor reception area.[18]
[18] Exhibit 1, page 90, para 16; Exhibit 1, pages 515 - 516.
Further, in 2019, without development approval, the applicants constructed a water tank in an area of native bushland in the south‑western portion of the subject site. Development approval was subsequently granted (retrospectively) in April 2020 (April 2020 approval) and this approval contained a condition that required the cleared area around the water tank and the access track to be 'revegetated with appropriate native species' (cleared area).[19] The applicants have not revegetated the cleared area.[20]
[19] Exhibit 1, page 90, para 10. The cleared area in the southern portion of the subject site was proposed to be used as an outdoor reception area. However, the applicants subsequently removed the cleared area from the development application. The City asserts that the cleared area (and the areas occupied by the chalets) was cleared without approval and seeks reinstatement of the vegetation (Exhibit 1, pages 590 - 591).
[20] Exhibit 1, page 90, para 11.
Whilst the April 2020 approval and the revegetation condition is not a matter before us in these proceedings, the applicants seek approval in DR 152 of 2023 to retain the 'existing loop road' in its cleared form, as shown on the site plan.[21] The loop road extends from Hayes Road in a southerly direction and loops around to reconnect to the western access road, north of chalet 7. East of the loop road is remnant native bushland, extending to the eastern boundary of the subject site.
[21] Exhibit 2, page 24. We do not accept the evidence of Mr Watts (Exhibit 1, page 244, para 31) that this aspect of the development application is 'not clear' as the loop road is clearly annotated on the site plan, and in any event, at the final hearing the applicants made it plain they wish to retain the loop road (or walking track as they refer to it) in its current form (ts 93, 14 May 2024).
There was no dispute that the development commenced without approval. As a result of the s 214(2) Notice, requiring work to stop and not recommence, the development is partially completed and not currently in use.
The following aspects of the development carried out at the subject site are the subject of the Notices as shown in Annexure A to these reasons:[22]
(a)the construction of three chalets;[23]
(b)the placement of three shipping containers in a similar formation to the chalets, which are proposed to be converted to chalets;
(c)the clearing of vegetation to accommodate the chalets and shipping containers; and
(d)the clearing of vegetation for an outdoor reception area (approximately 1,111m2).
[22] Exhibit 1, page 91, para 19.
[23] The structures are referred to in the Notices as 'tiny homes' but identified in the later development application as 'chalets'. We have used the term 'chalets' in these reasons, as defined in LPS 21, and as identified in the development application.
Consultation
The City advertised the development application for public comment and referred it to relevant authorities for comment. Thirteen public submissions were received, all objecting to the development.[24]
[24] Exhibit 1, page 92, para 26 and Exhibit 2, pages 206 - 236.
The Department of Water and Environment Regulation (DWER) identified that:[25]
(a)there is a watercourse downgradient of the location of the development that is within a proclaimed surface water area and that it is necessary to establish the capability of the land to accommodate on-site sewage disposal; and
(b)the clearing of native vegetation associated with the development may require a clearing permit and that retrospective applications that permit clearing of native vegetation by creating an exemption are not supported.
[25] Exhibit 1, pages 92 - 93, para 27(a).
The Department of Health (DoH) advised that further information is required before the proposal can be supported, including a site-specific soil evaluation carried out during the wettest time of the year.[26]
[26] Exhibit 1, page 93, para 27(b).
The Department of Fire and Emergency Services (DFES) advised that the development has not demonstrated compliance with Element 5: Vulnerable Tourism Land Uses.[27]
[27] Exhibit 1, page 93, para 27(c); Guidelines for Planning in Bushfire Prone Areas version 1.4, 2021 (Guidelines), page 91.
The Department of Biodiversity and Attractions (DBCA) observed that the Flora and Vegetation Survey undertaken in November 2014 (and on which the applicants rely) is outdated and, consequently, the development application should be supported by an updated survey. DBCA advised that the access road (loop road) has been constructed within areas mapped as 'excellent' condition and advice should be sought before any clearing work,[28] and that threatened fauna species, including the Western Ringtail Possum and Black Cockatoo, have been found on the subject site or nearby.[29]
[28] Exhibit 1, page 93, para 27(d).
[29] Exhibit 2, pages 249 - 250.
The planning framework
The legislative and planning framework which is relevant to the determination of these proceedings includes:
(a)PD Act;
(b)LPS 21 which incorporates Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) (Deemed Provisions);
(c)SPP 3.7 and the Guidelines for Planning in Bushfire Prone Areas version 1.4, 2021 (Guidelines);
(d)State Planning Policy 6.1 - Leeuwin - Naturaliste Ridge Policy (SPP 6.1);
(e)City of Busselton Local Planning Policy 2.4 Rural Tourist Accommodation (LPP 2.4); and
(f)Shire of Busselton Local Rural Planning Strategy (2006) (Rural Strategy).
In accordance with s 241(1)(a) of the PD Act, we are to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application. It follows that SPP 3.7 and SPP 6.1 are relevant to our determination.
Issues for determination
The issues for determination are not agreed by the parties. Whilst the applicants identified 'The issues according to the complainant',[30] in our view they do not assist us in our determination of the applications. Consequently, we accept the issues as framed by the City.
[30] Exhibit 1, page 123.
In DR 152 of 2023, the issues for determination are:[31]
[31] Exhibit 1, pages 88 - 89, paras 1 - 5.
1.Does the application include adequate information with respect to:
(a)the capability of the land for on-site effluent and wastewater disposal; and
(b)native vegetation and wildlife?
2.Is there a reason to vary the development standards in LPS 21 or depart from the policy provisions for boundary setbacks?
3.Is the clearing of native vegetation associated with the development acceptable?
4.Will the development create an unacceptable bushfire risk?
5.Is the development an appropriate use of the subject site having regard to:
(a)the Rural Strategy;
(b)SPP 6.1;
(c)the relevant zone objectives;
(d)LPP 2.4; and
(e)the matters raised in issues 1 to 4 above?
In DR 159 of 2022 and DR 197 of 2022, the issues for determination are:[32]
1.Whether development has occurred on the subject site?
2. Whether the development has been authorised or is otherwise exempt from the need for development approval?
3.Having regard to all relevant circumstances, should the Notices be affirmed, varied or set aside?
[32] Exhibit 1, pages 113 - 114, paras 1 - 3.
We will first consider and determine the issues relevant to DR 152 of 2023 and then turn to consider and determine the issues relevant to the Notices (DR 159 of 2022 and DR 197 of 2022).
The hearing and witness evidence
The final hearing was conducted in Busselton and commenced with a view of the subject site and the immediate surrounds. The view was attended by the applicants, counsel for the City, and the expert witnesses.
In addition to Mr Watts, the Tribunal heard evidence from two other expert witnesses engaged by the City:
(a)Ms Naomi Mynott, Director Land Use Planning at the Rural Fire Division of DFES. Ms Mynott is a qualified town planner and has completed the Fire Protection Association of Australia's Bushfire Attack Level Assessor Training Course.[33]
(b)Mr Joseph Caspersz-Loney, an environmental management officer with the City, who holds a Bachelor of Science (majoring in conservation biology), honours qualifications in conservation and wildlife biology, and post-graduate qualifications in ecological monitoring.[34]
[33] Witness Statement of Naomi Mynott, para 4; Exhibit 1, page 262.
[34] Witness Statement of Joseph Caspersz-Loney, para 2; Exhibit 1, page 234.
Each expert filed a witness statement which was accepted as their evidence-in-chief and was cross-examined.
The applicants called no expert evidence. At the final hearing, Mrs Happ gave oral evidence, and her two written statements were accepted into evidence.[35]
[35] Statement of Roslyn Happ - 'Summary following the first day of Tribunal hearing', Exhibit 6 and Statement of Roslyn Happ -'This is about Ros and Erl and their reasons for this development', Exhibit 7.
On 10 May 2024, just prior to commencement of the final hearing, the applicants filed with the Tribunal a further bundle of documents titled, 'Witness Statements and literature survey', containing statements from three residents of the Busselton region and one from Mr Happ. The bundle also included information in the form of a literature survey that Mr Happ had compiled relating to the Western Ringtail Possum and three species of Black Cockatoo found in the southwest of WA.[36] It was filed in response to a further extension of time granted by the Tribunal to enable the applicants to file witness evidence, expert or otherwise.[37]
[36] Exhibit 4. The resident witnesses did not attend the hearing and, consequently, were not available for cross-examination.
[37] Orders made at a directions hearing held on 6 May 2024. The Tribunal observed at the directions hearing that no witness statements (expert or otherwise) had been filed by the applicants in response to the issues for determination identified by the respondent or the evidence of the experts engaged by the respondent.
The applicants filed a Statement of Issues Facts and Contentions[38] (SIFC) and two bundles of documents.[39] On 6 May 2024 the applicants filed a further bundle which includes a 'Statement by the applicant', 'Response to Andrew Watts', and 'Response to Naomi Mynott'.[40] Whilst the applicants disagreed with the opinions of Mr Watts and Ms Mynott, they did not adduce any expert evidence in reply. Consequently, we have treated the document filed on 6 May 2024 as, in effect, the applicants' submissions as to the weight that we should give to the evidence of those experts.
[38] Exhibit 1, pages 122 - 194.
[39] Exhibit 1, pages 195 - 229 and pages 379 - 455.
[40] Exhibit 1, pages 278 - 378.
Despite commencing each application for review, the applicants chose not to rely on any expert evidence to support their position, which given the technical nature of the issues raised by the City, in our view, was a very significant deficiency.[41] Whilst we acknowledge the difficulty faced by self-represented litigants in an adversarial setting, the submissions filed by the applicants (and those given orally at the final hearing), on any fair view, were lengthy, repetitive and protracted, and to a large extent, not directed at the issues relevant to our determination.
[41] The Tribunal's decision must be based on evidence having probative force: see her Honour Justice Kiefel's decision in Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [25], as cited in Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 at [40]. Despite this, the applicants decided to proceed to hearing without any expert evidence.
Review of the City's decision to refuse the development
Does the development application include adequate information?
The development is not connected to reticulated sewerage or drainage. The chalets will rely on waterless composting toilets, with the intention of recycling the waste. Water for the development will be available from on-site water tanks, and the wastewater stream from the sink and showers will be delivered to a 'near surface leach drain' located more than 30 metres from the creek line.
The City contends that the information provided by the applicant with respect to effluent and wastewater disposal is inadequate because it lacks detail about how the waste recycling and drainage processes will operate. Having regard to recommendations made by DoH, the City says that the application should be accompanied, at the least, by a sitespecific Site and Soil Evaluation (SSE).[42]
[42] Exhibit 1, page 105, para 82.
Mr Watts is of the opinion that an SSE is necessary to demonstrate and inform the suitability for on-site disposal of waste water, the sustainability of the scale of the development, and the potential design of an effluent system to protect public health and the environment.[43] Mr Watts said that the SSE is used to determine the capacity of the subject site (including the permeability of the soil) for on-site application of wastewater and reduce the risk of contamination of ground and surface water with pathogens and nutrients.[44]
[43] Witness statement of Andrew Watts, para 89; Exhibit 1, page 253.
[44] Witness statement of Andrew Watts, para 89; Exhibit 1, page 253; ts 73, 13 May 2024.
There was no dispute, and we find, that a creek is located to the north, and down-gradient, of the development.[45] We further find that the creek is a watercourse within the Geographe Bay Rivers Surface Water Area proclaimed under the Rights in Water and Irrigation Act 1912 (WA).[46] Because the development is not connected to reticulated sewerage, we accept the uncontested evidence of Mr Watts, and we find, that additional information (including an SSE) is required to determine the nature and extent of any potential impact on the watercourse from the applicants' proposed approach to on-site effluent and wastewater disposal.
[45] Exhibit 2, page 239.
[46] Exhibit 2, page 237.
As the development involves the clearing of native vegetation, the City contends that it should include an updated flora and vegetation survey, and additional information with respect to the potential disturbance of threatened fauna species.[47] Further, in the absence of a current survey, the City contends that the Tribunal is unable to assess the impact of the development on the natural environment of the subject site (including habitat disturbance), as a designated Landscape Value Area, for the purposes of cl 5.4.2(c) of LPS 21.[48]
[47] Exhibit 1, page 106, para 86.
[48] ts 107, 14 May 2024.
In support of its position the City relied on the evidence of Mr Caspersz-Loney. Whilst Mr Caspersz-Loney acknowledged that a Flora and Vegetation Survey was conducted at the subject site in November 2014 (2014 survey), he said that the vegetation and the condition of it may have changed. In his opinion, a current vegetation survey is required to accurately assess the impact of the development because additional species could be present, and species found at the time of the 2014 survey could be absent.[49] Further, Mr Caspersz-Loney agreed with DBCA advice to the City that Black Cockatoos, which are listed threatened species under the Biodiversity Conservation Act 2016 (WA) and the Environment Protection Biodiversity Conservation Act 1999 (Cth), may be present on the subject site.[50]
[49] Witness statement of Joseph Caspersz-Loney, para 13; Exhibit 1, page 237; ts 57, 13 May 2024.
[50] Witness statement of Joseph Caspersz-Loney, para 13; Exhibit 1, page 237; Exhibit 2, page 249.
We accept the uncontested evidence of Mr Caspersz-Loney, and we find, that the 2014 survey is inadequate and that a current vegetation survey is required. We further find that no fauna survey has been conducted to determine the impact of the development on any threatened fauna species that may be present on the subject site. Consequently, we find that the application does not include sufficient information to determine the impact of the development on native flora and fauna.
Is there a reason to vary the development standards or depart from the policy provisions for boundary setbacks?
Clause 4.39.2 of LPS 21 provides that all buildings in the Rural Residential zone, unless other specified on a structure plan, must be setback 100 metres from Hayes Road, and no building may be located within 15 metres of a side boundary.[51] The City says that the development does not comply with these requirements because:
(a)chalet 1 is approximately 55 metres from Hayes Road and chalets 1 to 4 are within 100 metres of Hayes Road; and
(b)all seven chalets are located between 6.9 metres and 11.4 metres from the western side boundary (the boundary to Hayes Reserve).
[51] Witness statement of Andrew Watts, para 40; Exhibit 1, page 246. On a proper construction of LPS 21, we accept that the reference in cl 4.39.1 of LPS 21 to cl 4.37.2 is a numbering error and should refer instead to cl 4.39.2.
Further, cl 4.5 of LPP 2.4 provides that chalets specifically must be setback 50 metres from a side boundary (except if the adjacent property contains prime agricultural land). The objectives of LPP 2.4, with respect to setbacks, are to 'maintain scenic quality and tourism appeal of local road systems' and to 'achieve screening or filtered views only of development from neighbouring properties and roads'.[52]
[52] LPP 2.4, cl 4.5.
The City contends that the reduced setbacks to Hayes Road cause the chalets to be visible from Hayes Road and the neighbouring property to the south-east of the subject site.[53] The City further contends that the applicants have not identified any reason to vary the setback provisions in LPS 21 or depart from LPP 2.4, and that to permit the reduced setbacks would be contrary to the objectives of LPP 2.4 and the purpose of the Scheme setback provisions.[54]
[53] Exhibit 1, page 107, para 93.
[54] Exhibit 1, page 107, para 96.
In contrast, the applicants say that the visibility of the development from the road is a consequence of the adjacent gravel pit having been poorly revegetated between Hayes Road and the boundary, offering a view of the nearest chalet. Further, according to the applicants, the bushland at the southern end of the subject site is dieback affected.[55] The applicants did not lead any expert evidence in support of its contentions.
[55] Exhibit 1, page 308.
The City relied on the evidence of Mr Watts who observed that the chalets are at nearest approximately 9 metres from the western boundary, which is less than the 15-metre minimum setback established by cl 4.39.2 of LPS 21. He further observed that the chalets are setback approximately 55 metres from the Hayes Road Reserve, substantially less than the 100 metre minimum in cl 4.39.2 of LPS 21.[56]
[56] Witness statement of Andrew Watts, para 43; Exhibit 1, page 246.
Mr Watts said that the nearest chalet to Hayes Road can be clearly seen when travelling along that road in either direction and are also visible from the carpark and alfresco area associated with the Goanna Café on the neighbouring property.[57] Mr Watts considered that it is the reduced setback that causes the chalets to be visible from Hayes Road.[58]
Variation to setback provisions
[57] Witness statement of Andrew Watts, para 44; Exhibit 1, page 246.
[58] Witness statement of Andrew Watts, para 45; Exhibit 1, pages 246 - 247.
The Tribunal's power to vary development standards established by cl 4.39.2 of LPS 21 is contained in cl 4.5 of LPS 21. Relevantly, cl 4.5.4 provides that the power may only be exercised if the local government (or the Tribunal standing in its shoes) is satisfied that:[59]
a)approval of the proposed development would be appropriate having regard to the matters to be considered set out in clause 67 of the Deemed Provisions;
b)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
c)the non-compliance will not have an adverse effect upon the occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality.
[59] Exhibit 2, page 350.
The Tribunal has previously observed that planning policies should be consistent with the prevailing scheme.[60] Further, in Kakulas and City of Stirling [2013] WASAT 168 (Kakulas), the Tribunal repeated the axiomatic principle that 'a written policy cannot by itself, and no matter how clear its terms, fetter a statutory discretion, or for that matter, alter, detract from, or impair a legislative instrument. This is because policy must conform to any law'.[61]
[60] See Stock and Shire of Victoria Plains [2005] WASAT 347 at [19] - [23]; Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640.
[61] Kakulas at [21].
LPP 2.4 is a policy which applies to land zoned 'Rural Residential' and, consequently, LPP 2.4 applies to the subject site. However, we find that the setback provisions in cl 4.5 of LPP 2.4 are inconsistent with the development standard for setbacks in cl 4.39.2 of LPS 21. This is because LPP 2.4 requires the development, being chalets, to be setback 50 metres from any other property boundary except if that other property contains prime agricultural land, which is not the case here. In contrast, cl 4.39.2 of LPS 21 requires a side setback of 15 metres from a side boundary (the development does not comply with the 15metre setback requirement on its western boundary but does on its eastern boundary). Further, cl 4.39.2 of LPS 21 enables a structure plan to specify different setbacks than those provided for in the Scheme. However, LPP 2.4 is not a structure plan.
Having found that cl 4.5 of LPP 2.4 is inconsistent with the cl 4.39.2 of LPS 21, we will next consider whether the development complies with the setback requirements in cl 4.39 of LPS 21 and, if not, whether the development standards should be varied in the circumstances of this case.
Findings - setbacks
We find that the development does not comply with the 100-metre setback standard in cl 4.39.2 of LPS 21 because, based on the uncontested evidence of Mr Watts, which we accept, we find that the chalets are setback approximately 55 metres from Hayes Road. We further find that the purpose of the 100-metre setback from Hayes Road in cl 4.39.2 of LPS 21 is to preserve the high landscape value of the area and minimise the visibility of man-made structures from the road. Based on the uncontested evidence of Mr Watts, which we accept, we find that the reduced setback of 55 metres causes the development to be visible, and in our view, significantly so, from Hayes Road.
Because of the adverse impact on the visual amenity of the locality, we are not satisfied that varying the development standard would be consistent with cl 4.5.4(b) and cl 4.5.4(c) of LPS 21. Further, having regard to the relevant matters set out in cl 67(2) of the Deemed Provisions, as required by cl 4.5.4(a) of LPS 21, we are not satisfied that the development is consistent with cl 67(2)(m) and cl 67(2)(n) of the Deemed Provisions. We have already found that the development is not compatible with its setting and the reduced setback to Hayes Road negatively impacts the amenity of the locality.
There was no dispute, and we find, that the chalets are located within 15 metres of the western boundary of the subject site which is contrary to the side setback requirement in cl 4.39.2 of LPS 21. However, the western boundary of the subject site abuts the Hayes Reserve, a vegetated bushland reserve. The evidence of Mr Watts does not identify concerns with the setbacks at the western boundary, which vary between 6.9 metres, at chalet 7 and 11.4 metres for chalet 5.[62] Consequently, we are satisfied that the setbacks along the western boundary could be varied pursuant to cl 4.5.4 of LPS 21, if the application for review of the City's decision was successful, because the western boundary abuts a vegetated bushland reserve which assists in screening the development.
Is the clearing associated with the development acceptable?
[62] Exhibit 2, page 24.
The applicant does not expressly seek approval to clear any native vegetation on the subject site. However, by necessary implication, the development involves the removal of vegetation to accommodate the chalets and the originally proposed outdoor reception area. The applicants also seek to retain the cleared area (which includes the loop road) as part of the development which, as we stated earlier, is required to be revegetated because of a condition on the April 2020 approval relating to the water tank.
The City contends that the removal of native vegetation to accommodate the chalets would be:[63]
(a)inconsistent with the existing rural and scenic character of the area;
(b)inconsistent with the Rural Residential zone objective to set aside areas for the retention of vegetation;
(c)inconsistent with Rural zone objectives (a) and (c), to the extent that the Rural zone objectives are relevant;
(d)contrary to the general presumption against the clearing of native vegetation established by SPP 6.1, Policy PS 2.2;
(e)contrary to SPP 6.1 Policies PS 3.2 and 3.4;
(f)inconsistent with the Rural Strategy Precinct Vision for The Commonage to permit low key tourist activities where they sustain the existing natural environment and landscape value; and
(g)inconsistent with the Rural Strategy Precinct Objectives 7.6.6 to 'protect existing and encourage re-establishment of environmental corridors and buffers particularly in proximity to reserves and particularly in areas of high landscape value'.
[63] Exhibit 1, page 108, para 103.
The City further contends that, to the extent that the development includes or relies on the internal loop road, the totality of clearing amounts to a major disturbance of remnant bushland and, therefore, is actively discouraged by LPP 2.4.[64]
[64] Exhibit 1, page 109, para 104.
In support of its position, the City relied on Mr Caspersz-Loney's evidence about the extent of clearing on the subject site. Mr Caspersz‑Loney said that clearing of native vegetation had already occurred where the chalets have been located, in an area of approximately 1,111m2 south of the chalets which was originally proposed for an outdoor reception centre, and also to create the internal loop road.[65] He said that land adjacent to these areas is likely to suffer 'edge effects' which include the introduction of weeds, pathogens and soil erosion.[66] Mr Caspersz-Loney referred to the 2014 survey which he said indicates that the vegetation that has been removed, or is still to be removed, to accommodate the chalets, is Eucalyptus Open Woodland in 'good' condition.[67] He further observed that the area cleared for the internal loop road is at least partly within Corymbia forest of 'excellent' condition.[68] Mr Caspersz-Loney said that the area forms part of the Metricup vegetation complex, of which only 548 hectares remain, below the DBCA recommended 1500-hectare threshold for the retention of remnant vegetation.[69]
[65] Witness statement of Mr Caspersz-Loney, para 8; Exhibit 1, page 236.
[66] ts 59 - ts 60, 13 May 2024.
[67] Witness statement of Mr Caspersz-Loney, para 9; Exhibit 1, page 236.
[68] Witness statement of Mr Caspersz-Loney, para 9; Exhibit 1, page 236.
[69] Witness statement of Mr Caspersz-Loney, para 7 and para 12; Exhibit 1, page 235 and 237.
We have already determined that a current vegetation survey should have been commissioned by the applicants, prior to any clearing, to determine the impact of the development on native vegetation. We accept the uncontested evidence of Mr CasperszLoney, and we find, that the quality of the native vegetation that has been removed, or is still to be removed, to accommodate the chalets is in 'good' condition, and that native vegetation in 'excellent' condition was removed for the internal loop road. The loss of 'good' and 'excellent' quality vegetation is particularly significant given his evidence that only 548 hectares of the complex remains.
Consequently, we are satisfied that the clearing of native vegetation to accommodate the development is inconsistent with the objectives of the Rural Residential zone to set aside areas for the retention of vegetation and contrary to the general presumption against the clearing of native vegetation established by SPP 6.1, Policy PS 2.2. Further, to the extent that the development includes or relies on the internal loop road, we are satisfied that the totality of the clearing involves a major disturbance of remnant bushland for the purposes of LPP 2.4. Rural accommodation development that causes major disturbance of remnant vegetation or natural areas is actively discouraged across the Scheme area.[70]
[70] LPP 2.4, cl 4.10; Exhibit 2, page 586.
For these reasons, we find that the clearing of native vegetation for the purposes of the development is unacceptable.
Will the development create an unacceptable bushfire risk?
The applicants say that the development would reduce the fuel load from native vegetation and make bushfire management easier.[71] The applicants produced a bushfire management plan (BMP)[72] in support of their application which classified the development as a vulnerable land use. According to the BMP, the chalets would have a Bushfire Attack Level (BAL) rating of BAL-FZ from all directions. The BMP provides that the development achieves Acceptable Solution A5.7b[73] because the chalets are 'a tolerable loss' and, consequently, would not necessarily be defended in the event of a bushfire.
[71] Exhibit 1, pages 345 - 346.
[72] Exhibit 2, pages 106 - 196.
[73] See Guidelines, page 93.
The City does not accept that Acceptable Solution A5.7b applies to the development. Rather, the City contends that Acceptable Solution A5.7c applies because A5.7b applies to 'caravan and camping sites, eco tents and cabins' and other short-term accommodation of a similar type, but does not apply to more substantial structures such as chalets.[74] Counsel for the City drew our attention to Sch 1 to the LPS Regulations[75] which defines a 'cabin' as 'a dwelling forming part of a tourist development or caravan park that is - (a) an individual unit other than a chalet; and (b) designed to provide short-term accommodation for guests'.[76] In contrast, and consistent with its LPS 21 definition, a 'chalet' is defined in Sch 1 to the LPS Regulations as 'a self-contained unit that includes cooking facilities, bathroom facilities and separate living and sleeping areas'.
[74] Exhibit 1, page 110, para 108.
[75] Clause 1 of the Guidelines provides that they are to be read in conjunction with the LPS Regulations.
[76] LPS Regulations, Sch 1, cl 37(1).
Further, according to the City, the development does not, and cannot, comply with Acceptable Solution A5.7c because no APZ is to be provided. In any event, because the chalets have a BAL-FZ rating from all directions, the City contends that the development is contrary to cl 6.6.2 of SPP 3.7.[77] Pursuant to policy measure 6.6.2 of SPP 3.7, a development application for vulnerable land uses in BAL-FZ areas will not be supported unless it complies with policy measures 6.6.1 and 6.7.2. The City says that the development does not comply with policy measure 6.7.2 because it is not 'unavoidable'.[78]
[77] Exhibit 1, page 111, para 111.
[78] Exhibit 1, page 111, para 111.
In support of its position, the City relied on the evidence of Ms Mynott. In Ms Mynott's opinion, it is not generally appropriate to locate tourism in areas of BAL-40/FZ because the locations are subject to extreme heat, extensive ember attack and likely direct flame contact.[79] She considered that the applicants' proposal to locate a vulnerable land use (tourist accommodation) in a BAL-FZ area, with no APZ, and without the chalets constructed to any AS 3959:2018 standard[80] is contrary to policy objective 5.1 of SPP 3.7 and the overall intent of SPP 3.7.[81]
[79] Witness statement of Naomi Mynott, para 46; Exhibit 1, page 267.
[80] AS 3959:2018 provides the requirements for the design and construction of buildings in bushfire prone areas.
[81] Witness statement of Naomi Mynott, para 49; Exhibit 1, page 268.
Nevertheless, Ms Mynott acknowledged that Acceptable Solution A5.7b provides a pathway for certain types of accommodation structures, such as caravan and camping sites, eco tents and cabins, to be located within BAL-40/FZ where they are defined within a BMP as a 'tolerable loss'.[82] In Ms Mynott's opinion, however, the structures erected on the subject site are not cabins but fall within the meaning of a 'chalet' because they are self-contained short term accommodation units that include cooking facilities, bathroom facilities, and separate living and sleeping areas.[83] Consequently, she considered that Acceptable Solution A5.7b is intended to apply to mobile or temporary structures which cannot be constructed to any AS 3959:2018 standard and which do not require building permits.[84]
[82] Witness statement of Naomi Mynott, para 50; Exhibit 1, page 268.
[83] Witness statement of Naomi Mynott, para 52; Exhibit 1, page 268.
[84] Witness statement of Naomi Mynott, para 53; Exhibit 1, pages 268 - 269.
Because the chalets are more substantial accommodation structures, with a greater degree of permanence, it is Ms Mynott's opinion that Acceptable Solution A5.7c should be applied.[85] Acceptable Solution A5.7c requires an APZ to be established to achieve BAL-29 or lower to demonstrate compliance.
[85] Witness statement of Naomi Mynott, para 56; Exhibit 1, page 269.
We accept the uncontested evidence of Ms Mynott, and we find, that the structures erected on the subject site fall within the meaning of a 'chalet' because they are self-contained short term accommodation units that include cooking and bathroom facilities, and separate living and sleeping areas. Consequently, we find that Acceptable Solution A5.7c, which requires an APZ, should be applied in the assessment of this development. Because the development does not provide an APZ, we find that the requirements of Acceptable Solution A5.7c are not satisfied.
If we are wrong, and Acceptable Solution A5.7b is applicable in this case because the BMP identifies the chalets as 'a tolerable loss', we nevertheless find that the chalets do not meet the definition of 'unavoidable development' for the purposes of policy measure 6.7.2 of SPP 3.7. 'Unavoidable development' is defined in SPP 3.7 as follows:[86]
Development that in the opinion of the decision-maker, represents exceptional circumstances where full compliance with this policy would be unreasonable, no alternative location exists; it is not minor development; and is not contrary to the public interest[.]
[86] SPP 3.7, cl 7.
Whilst the subject site has a 150,000 litre water tank to be signposted and maintained in the event of a fire, and the applicants have proposed sprinkler systems in addition to other fire suppression measures,[87] we do not accept the applicants' contention that the development represents 'exceptional circumstances' for the purposes of the definition of 'unavoidable development'.[88] In our view, creating an affordable ecotourism experience in a flame zone is contrary to the public interest, even with the fire suppression measures proposed, because the occupants of the chalets are inherently vulnerable and ill-equipped to respond appropriately to a bushfire.[89]
[87] Exhibit 1, page 347.
[88] Exhibit 1, page 345.
[89] Witness statement of Naomi Watt, para 44; Exhibit 1, page 267.
Consequently, there is a presumption against approving a development that would result in the introduction of a vulnerable land use in an area where a BAL-FZ applies.[90] On the basis of the evidence of Ms Mynott, which we accept, we find that the presumption has not been rebutted because, in the event of a fire, the chalets would likely be subject to extreme heat, extensive ember attack and direct flame contact. The applicants acknowledged that 'the big risk is from a fire originating in the east'.[91] Indeed, Mr Happ effectively conceded that 'the big fire will come one day' and that 'it is going to be catastrophic for this rural residential area'.[92]
[90] SPP 3.7, policy measure 6.7.2.
[91] Exhibit 1, page 346.
[92] ts 125, 14 May 2024.
The intent of SPP 3.7 is to preserve life and reduce the impact of bushfire on property and infrastructure. We find that the development is inconsistent with this intent, including policy objective 5.1 of SPP 3.7, because a vulnerable land use in the form of tourist accommodation is proposed in a BAL-FZ area, with no APZ (to retain an intimacy with the native vegetation), and without the chalets constructed to an AS 3959:2018 standard.
Because the policy measures of SPP 3.7 have not been satisfactorily addressed by the applicants, and the subject site is in a designated bushfire prone area,[93] a precautionary approach should be applied.[94]
[93] Witness statement of Naomi Mynott, para 12; Exhibit 1, page 263.
[94] SPP 3.7, policy measure 6.11.
For these reasons, we find that the development, in its proposed location, would constitute an unacceptable bushfire risk. Consequently, we do not accept the applicants' contention that there is a basis to depart from SPP 3.7 in the circumstances of this case.
Is the development an appropriate use of the subject site?
In summary, the City contends that the development is an inappropriate use of the subject site, being a designated Landscape Value Area, because:[95]
(a)the provisions of SPP 6.1 and LPP 2.4 seek to retain native vegetation and maintain the landscape character of the area;
(b)the provisions of LPP 2.4 actively discourage major disturbance of remnant vegetation;
(c)chalet development is not generally considered appropriate in the rural residential zone: cl 4.2(b) of LPP 2.4;
(d)the location of the chalets in a flame zone and their designation as 'a tolerable loss' is inconsistent with the principles of sustainability;
(e)development should not be located in areas of high fire hazard: SPP 6.1 Policy PS 2.7; and
(f)it is inconsistent with the vision and objectives for The Commonage set out in the Rural Strategy.
[95] Exhibit 1, pages 111 - 112, para 113.
The City further contends that LPP 2.4 does not contemplate chalet development in the Rural Residential zone. However, we find that cl 3.5.2 of LPS 21 provides that a chalet is a discretionary use in the Rural Residential zone for lots greater than 20 hectares. The subject site is greater than 20 hectares and, consequently, we find that cl 3.5.2 of LPS 21 applies.
As we have already considered the issues of vegetation clearing and bushfire risk associated with the development, we will next consider whether the development maintains and enhances the scenic qualities of the locality for the purposes of cl 5.4.2 of LPS 21, and the protection of rural and natural landscape amenity for the purposes of SPP 6.1 and the Rural Strategy.
Clause 5.4.2 of LPS 21 provides:
5.4.2The local government shall not grant development approval for the clearing or development of any land identified within a Landscape Value area on the Scheme map, unless it has considered -
a)whether the development will be compatible with the maintenance and enhancement, as far as is practicable, of the existing rural and scenic character of the locality;
b)whether the development will materially affect any wildlife refuge, significant wetland, coastal environment or any identified site containing Aboriginal archaeological relics; and
c)disturbance to the natural environment, including -
(i)visual effects of clearing for development;
(ii)maintenance of rural character; and
(iii)habitat disturbance.
Further, SPP 6.1 provides in cl 4.3 the following Statement of Intent as it relates to Landscape:
This is an extraordinary landscape which is part of the nation's heritage. It's unique values will be conserved by land use strategies and development assessment processes, having particular regard for:
•protection of the natural character of the Leeuwin-Naturaliste Ridge, including the coastal and marine interfaces and areas of remnant vegetation;
•maintenance of the mosaic land uses evidence in existing agricultural areas, while providing for change in agricultural land uses; and
•recognition of the role and importance of human activity and its contribution to cultural landscape.
Relevantly, the Rural Strategy designates the subject site as being within Precinct 6 - Commonage. The Rural Strategy identifies 'The Commonage' as follows:[96]
This area comprises rural residential and other less intensive land uses in undulating topography with high levels of rural and natural landscape amenity.
[96] Rural Strategy, cl 7; Exhibit 2, page 529.
In the opinion of Mr Watts, the development is incompatible with the maintenance of the scenic character of the locality contrary to the intent of cl 5.4.2(a) of LPS 21. He formed this opinion because the development and associated clearing that has been undertaken for the footprint and access to the chalets, together with the cleared area, has a significant visual impact which detracts from the scenic character of the area created by the presence of native vegetation.[97] Mr Watts also considered that the disturbance to the natural environment due to vegetation clearing by the applicants is inconsistent with the theme of the policy statements in SPP 6.1 which seek to protect the landscape value of the area, and has a significant detrimental impact on the natural scenic character of The Commonage.[98]
[97] Witness statement of Andrew Watts, para 49; Exhibit 1, pages 247 - 248.
[98] Witness statement of Andrew Watts, para 56, para 59, and paras 64 - 65; Exhibit 1, pages 248 - 250.
According to the applicants, the City's emphasis on the retention of native vegetation is misplaced. The applicants say that all the City requires to achieve the status of 'landscape value' (or 'natural landscape significance') is the presence of native vegetation.[99] However, the applicants contend that much of the locality that is considered to have natural landscape significance is cleared land, and consequently, is not related to vegetation but rather the view to the east.[100] We do not accept this contention. Based on the uncontested evidence of Mr Watts, which we accept, we find that as a result of the clearing of remnant vegetation at the subject site, the development fails to maintain or enhance the scenic character of the locality for the purposes of cl 5.4.2(a) of LPS 21, is inconsistent with the statement of intent in cl 4.3 of SPP 6.1 for the protection of the Leeuwin-Naturaliste Ridge landscape, and is detrimental to the natural scenic character of The Commonage in circumstances where the Rural Strategy has already identified the loss of landscape values from the clearing of remnant vegetation as a major issue.[101] In the opinion of Mr Watts, which we accept, we find that the scenic character of a locality includes the maintenance of vegetation and the natural environment.[102] It follows that 'landscape value' is a broad concept which reflects the natural and visual amenity (or scenic character) of a place including the presence of native (and/or exotic) vegetation.
[99] Exhibit 1, page 310.
[100] Exhibit 1, page 310.
[101] Rural Strategy, cl 7.6.3.
[102] ts 72, 13 May 2024.
For these reasons, we find that the development is not an appropriate use in this vegetated location and, consequently, is inconsistent with the principles of orderly and proper planning.[103]
Disposition - review of the City's decision to refuse development approval
[103] See Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [180].
The applicants are seeking review of the City's decision to refuse development approval for the erection of seven chalets on the subject site and the associated clearing of native vegetation to accommodate the chalets.
Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions and in s 241(1) of the PD Act, and weighing up our findings in respect of the issues for determination, we conclude that the correct and preferable decision is to dismiss the application for review because:
(a)the application does not provide sufficient information to determine the impact of the development on native flora and fauna and, consequently, the City (or the Tribunal standing in its shoes) is unable to assess the impact of the development on the natural environment of the subject site as a designated Landscape Value Area;
(b)the development does not comply with the 100-metre setback from Hayes Road as required by cl 4.39.2 of LPS 21 and we are not satisfied that the setback standard should be varied in the circumstances of this case;
(c)the clearing of native vegetation is inconsistent with the objectives of the Rural Residential zone (and the intent of LPP 2.4) to set aside areas for the retention of vegetation and contrary to the general presumption against the clearing of native vegetation in SPP 6.1;
(d)the development would constitute an unacceptable bushfire risk as the chalets will be located in a flame zone with no APZ; and
(e)the development is incompatible with the Leeuwin-Naturaliste Ridge landscape, detrimental to the natural scenic character of The Commonage and, being located in a designated Landscape Value Area, fails to maintain or enhance the scenic qualities of the locality.
Accordingly, in DR 152 of 2023, we will exercise our discretion to affirm the City's decision to refuse development approval for seven chalets at the subject site and dismiss the application for review.
We will next turn to review the City's decision to issue the Notices which are the subject of proceedings DR 159 of 2022 and DR 197 of 2022.
Review of the City's decision to issue the Notices
On 1 September 2022, the City issued the Notices to the applicants, to stop work and restore the subject site.
Has development occurred on the Land?
There was no dispute, and we find, that areas of native vegetation have been cleared on the subject site, including 1,111m2 for the originally proposed outdoor entertainment area. There was also no dispute, and we find that three chalets have been erected on the subject site. The applicants have also placed three shipping containers on the subject site, in a similar formation to the chalets, which are in the process of being converted to dwellings.[104]
[104] Exhibit 1, page 116, para 19.
Consequently, we find that development has occurred on the subject site.
Was the development authorised?
Clause 60 of the Deemed Provisions provides that all development within the Scheme Area requires approval unless exempt. The exemptions from obtaining development approval are set out in cl 61 of the Deemed Provisions and in cl 6.1 of LPS 21.
The subject site is zoned Rural Residential. For the reasons we provided earlier, a 'chalet' is a class 'D' use at the subject site which means that the use is not permitted unless the City has exercised its discretion by granting development approval.
The subject site is located in a Landscape Value Area. Consequently, the City must not grant development approval for the clearing of vegetation or the development of any land in a Landscape Value Area unless is it satisfied of the matters set out in cl 5.4.2 of LPS 21.
The City says that no development approval exists or has ever been granted for the clearing of land in the cleared area, the construction of the chalets or the placement of the shipping containers on the subject site.
In contrast, the applicants contend that the purpose of the development is to build affordable housing, and to demonstrate that it is possible to halve the cost of construction, and for visitors to have an experience that is otherwise out of reach.[105] However, Mr Happ acknowledged that he had defied the law in locating sea containers on his property without planning permission and that it was 'a very deliberate challenge to authorities'.[106]
[105] Exhibit 1, page 126.
[106] Exhibit 1, page 125.
We find that the development does not fall within a class of exempt development for the purposes of cl 61 of the Deemed Provisions or cl 6.1 of LPS 21. Whilst it is commendable that the applicants wish to share their property with others, and provide a form of low-cost housing, we find that the clearing of native vegetation, the erection of the three chalets, and the placement of the three shipping containers requires development approval under LPS 21. 'Chalets' are a class 'D' use and, consequently the use is not permitted unless the City has exercised its discretion by granting development approval. There was no dispute, and we find, that the City did not grant approval to the applicants for the development before work commenced.
Should the Notices be affirmed, varied or set aside?
In determining whether to affirm, vary or set aside the City's decision to give the Notices, we accept that the matters relevant to the exercise of our discretion include, but are not limited to:[107]
(a)the public interest, and the interests of orderly and proper planning, that those who carry out development or use land should comply with the requirements of planning legislation;
(b)the impact of the non-compliance on the affected locality and environment;
(c)the factual circumstances in which the non-compliance occurred;
(d)the time that has elapsed since the development was undertaken in contravention of the Scheme; and
(e)the expense and inconvenience involved in remedying the contravention.
[107] Morea Architects and Town of Vincent [2006] WASAT 263 at [63] citing Drake and City of South Perth [2005] WASAT 271 at [93] - [97]; Exhibit 1, page 120, para 42.
A significant area of native vegetation on the subject site has been cleared by the applicants for the development. We have found that the development, by the removal of native vegetation, is inconsistent with the statement of intent in cl 4.3 of SPP 6.1 for the protection of the Leeuwin-Naturaliste Ridge landscape and is detrimental to the natural scenic character of the locality.
It is also relevant to the exercise of our discretion that the applicants had been liaising with Council officers in relation to the need for a Scheme amendment to provide an additional use on the subject site and its subdivision potential.[108] Nevertheless, the applicants chose to proceed with the development in the southern portion of the subject site even though the City had earlier advised them the concept was unlikely to be supported.[109] The applicants were also given the opportunity by the City to remove the chalets and shipping containers before the Notices were issued.[110]
[108] Exhibit 1, page 115, para 10.
[109] Exhibit 1, page 115, para 11.
[110] Witness statement of Andrew Watts, para 17; Exhibit 1, page 242.
We have found that the bushfire risk posed by the development is unacceptable. We do not consider that the use of the chalets for tourist purposes, in a flame zone without an APZ, is in the public interest, or in the interests of orderly and proper planning, even if the presence of the chalets on the subject site facilitated access to affordable housing.
No doubt there will be considerable expense in removing the development and restoring the subject site. However, we are satisfied that any future costs incurred in complying with the Notices are solely attributable to the actions of the applicants.
For these reasons, we will exercise our discretion to affirm the City's decisions to give the Notices and dismiss each application for review in DR 159 of 2022 and DR 197 of 2022.
Conclusion
Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions and in s 241(1) of the PD Act, we conclude that the correct and preferable decision is to dismiss the application for review in respect of DR 152 of 2023. Consequently, we will affirm the City's decision made on 15 August 2023 to refuse development application DA23/0226 for seven chalets at the subject site.
In respect of the Notices, we will dismiss the application in DR 159 of 2022 and affirm the decision of the City made on 1 September 2022 to issue the s 214(3) Notice to remove the development which had commenced at the subject site without development approval and to restore the subject site to its condition immediately before the development commenced.
In respect of DR 197 of 2022, we will dismiss the application and affirm the decision of the City made on 1 September 2022 to issue the s 214(2) Notice to immediately stop and not recommence the unauthorised development at the subject site.
For the above reasons, the Tribunal makes the following orders.
Orders
DR 152 of 2023
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 15 August 2023 to refuse development application DA23/0226 for seven chalets at Lot 4526 (No 575) Commonage Road, Quindalup, is affirmed.
DR 159 of 2022
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 1 September 2022 to issue a direction to the applicants pursuant to s 214(3) of the Planning and Development Act 2005 (WA) to remove the development which had commenced at Lot 4526 (No 575) Commonage Road, Quindalup without development approval and to restore the land to its condition immediately before the development commenced is affirmed.
DR 197 of 2022
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 1 September 2022 to issue a direction to the applicants pursuant to s 214(2) of the Planning and Development Act 2005 (WA) to immediately stop and not recommence the unauthorised development at Lot 4526 (No 575) Commonage Road, Quindalup is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
25 JULY 2024
ANNEXURE A
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
29 JULY 2024
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