HARMANIS HOLDINGS NO. 2 PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2019] WASAT 43

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   HARMANIS HOLDINGS NO. 2 PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 43
MEMBER:   MS L EDDY, SENIOR MEMBER
HEARD:   25 MARCH 2019
DELIVERED          :   25 JUNE 2019
FILE NO/S:   DR 182 of 2018
BETWEEN:   HARMANIS HOLDINGS NO. 2 PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town Planning - Subdivision application - Bushfire prone area - Interpretation of State Planning Policy 3.7 - What is required for a BAL Contour Map - What is the area to be considered for purposes of cl 6.7 of SPP 3.7 - Bushfire protection criteria - Whether compliant with elements one and three of the bushfire protection criteria - Whether proposed design solution complies with the performance solution - Whether reason to depart from policy - Development Control Policy 1.1 - Whether access from public road via easements over private land complies with DC 1.1

Legislation:

City of Busselton Local Planning Scheme No. 21, cl 3.2.10, cl 4.30.2, cl 4.32.4, cl 4.36, cl 5.13.1
Development Control Policy 1.1 Subdivision of Land - General Principles, cl 2, cl 3.7, cl 3.7.1
Planning and Development Act 2005 (WA), s 138(2), s 138(3), s 142, s 143, s 145(4)(b), s 145(4)(b)(i), s 241(1), s 251(1), Pt 14
State Planning Policy 3.4 - Natural Hazards and Disasters
State Planning Policy 3.7 - Planning in Bushfire Prone Areas, cl 1.3, cl 2, cl 2.1, cl 3.2.1, cl 4.5, cl 4.5.2, cl 4.5.2.1, cl 4.5.2.2, cl 5.1, cl 5.3, cl 5.3.1, cl 6.4, cl 6.7, cl 6.11, cl 7, Pt 2
State Planning Policy 6.1 - Leeuwin-Naturaliste Ridge Policy

Result:

Decision of respondent affirmed
Application dismissed

Summary of Tribunal's decision:

The applicant sought approval to subdivide a large block of land into three lots. All of the site in bushfire prone area. Existing dwelling located on part of the land that is physically separated from the rest of the land by a Brook (proposed Lot 2). Existing access to this part of the land is provided by way of easement agreements over private land neighbouring the site. Proposed Lot 1 was intended to be subject to a conservation covenant that restricted all development over the entirety of proposed Lot 1. Proposed Lot 3 contains a large building envelope and Asset Protection Area. The application was refused on the basis of non-compliance with SPP 3.7 - Planning in Bushfire Prone Areas and non-compliance with DC 1.1 - Subdivision of Land, all lots not having direct frontage to a public road.
In relation to bushfire, the applicant argued that it did not have to provide a BAL contour map for the whole of the site as the concept of BAL, as defined in SPP 3.7, related only to the impact of bushfire on buildings. BAL contour map provided in support of application only showed BAL contours at building envelope and 100 metres outside of building envelope. In addition, the applicant called expert evidence to show that although proposed lot three did not have at least two access routes it nonetheless met the performance solution for element three of the bushfire protection measures because the Bushfire Management Plan contained a suite of measures that would enable occupants to 'shelter in place'. Applicant's experts opinion was that this is as safe, or safer than the acceptable solution because a rapid onset fire in extreme weather conditions would cut off all access point, no matter how many were provided within a very short period of time.
The Tribunal analysed SPP 3.7 and the Guidelines and determined as follows. A BAL Contour Map must depict BAL contour lines over the whole site and 100 metres outside of the site. The applicant's BAL contour map did not comply with the requirement of SPP 3.7. However, in the circumstances of this case the Tribunal had sufficient information before it and therefore it accepted the departure from policy in that respect. The 'area' referenced in cl 6.7 of SPP 3.7 is, when using BAL assessment, the area within which one might expect existing or future buildings to be impacted. Where the site of future buildings is not known, the relevant 'area' will be the whole site. Where there is a building envelope, the 'area' is the building envelope and its surrounds. When using a Bushfire Hazard Level assessment, the 'area' is the whole site.
The Tribunal was not satisfied that the proposed design solution complied with the performance criteria and the intent of element three. In considering whether the proposed design solution provided a good reason to depart from policy, the Tribunal was ultimately not satisfied on the evidence that there was any such reason.
In relation to compliance with DC 1.1, the Tribunal determined that the proposed subdivision did not comply with the direct frontage to a public road requirement. However, in the circumstances of this case, the Tribunal would have found there was a reason to depart from DC 1.1 in the circumstances of this case.
The Tribunal determined that the correct and preferable decision was to affirm the respondent's decision to refuse the proposed subdivision.

Category: B

Representation:

Counsel:

Applicant	:	Mr H Jackson
Respondent	:	Ms F Cardell-Oliver & Mr J Misso

Solicitors:

Applicant	:	Richard Payne & Associates
Respondent	:	State Solicitor's Office

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

Boynton & Ors and Western Australian Planning Commission [2018] WASAT 60
Clarcor Pty Ltd v Maroondah City Council [2003 VCAT 435
Juran and City of Armadale [2018] WASAT 49
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Sharp and Western Australian Planning Commission [2010] WASAT 12
Zerelli Holdings Pty Ltd v Williams (2012) 113 SASR 573; [2012] SASCFC 100

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In January 2017 Harmanis Holdings No. 2 Pty Ltd (applicant) sought approval form the Western Australian Planning Commission (respondent) to subdivide Lot 2 Woodlands Road, Wilyabrup (subject site) into three lots (proposed subdivision). The subject site is within a declared bushfire prone area.
Proposed Lot 1 is to be approximately 35 hectares in area and the applicant intends for this to be retained undeveloped, as a conservation lot. Proposed Lot 2 is to be of approximately 36 hectares and contains the existing dwelling. Proposed Lot 3 is to be approximately 41 hectares and will contain a building envelope.
Pursuant to s 142 of the Planning and Development Act 2005 (WA) (PD Act), the respondent referred the proposed subdivision to Western Power, the Water Corporation, the City of Busselton, the Department of Parks and Wildlife (now the Department of Biodiversity, Conservation and Attractions) (DPAW) and the Department of Fire and Emergency Services DFES). Responses were received from each of those agencies.
On 26 June 2018, the respondent refused to approve the proposed subdivision for the following reasons:
1.The commission is not satisfied that the bushfire management issues can be satisfactorily addressed by the proposed subdivision in accordance with the objectives and intent of State Planning Policy 3.7-Planning in Bushfire Prone Areas and the Guidelines to Planning in Bushfire Prone Areas, as the proposal:
•is in a location that does not provide for appropriate bushfire protection to manage the bushfire risk;
•the proposal has a single access road greater than 200m in length in an area of extreme bushfire risk;
•will place life and property at an unacceptable level of risk;
•will increase the threat of bushfire to people, property and infrastructure; and
•is not supported by the State authority responsible for emergency services.
2.The proposed subdivision is inconsistent with Development Control Policy 1.1 - Subdivision of Land - General Principles (section 3.7), which requires that new lots are to be provided with direct access to a constructed public road. Approval of the subdivision, in the absence of public road access to the lots, would be inconsistent with orderly and proper planning.
3.The proposed subdivision is inconsistent with the stated objective of State Planning Policy 3.4 - Natural Hazards and Disasters, which seeks to minimise the adverse impact of natural disasters, including bushfires, on communities, the economy and environment.
4.Approval of the subdivision would set an undesirable precedent for the subdivision of similarly constrained lots.
On 19 July 2018 the applicant lodged an application for review of the respondent's decision with the Tribunal pursuant to s 251(1) of the PD Act.

Agreed facts

The following facts are taken from the respondent's statement of issues, facts and contentions and are agreed by the applicant.
The subject site is 113.15213 hectares in size, irregular in shape, mostly undulating, and slopes towards Wilyabrup Brooke and the Indian Ocean.
There is an existing dwelling and outbuildings on the part of the subject site identified as proposed Lot 2 and two existing uninhabited structures on proposed Lot 3. Most of the remainder of the subject site is densely vegetated. There is an area within the eastern portion of proposed Lot 3, which is relatively level with large rock outcrops and is not as densely vegetated as the balance of the subject site.
The subject site is bounded by a reserve, held by the Conservation Commission of Western Australia, to the west and north-west. It is bounded by privately owned land to the south and east.
Wilyabrup Brook runs through proposed Lot 1 and along the boundary of proposed Lot 2 on proposed Lot 1.
The subject site is located at the terminus of Woodlands Road. Woodlands Road runs through proposed Lot 1 and abuts a portion of proposed Lot 3.
The dwelling on proposed Lot 2 has access to Matheson Road to the north via easements over the reserve and Lot 346 Matheson Road.
The subject site is located within the City of Busselton, approximately 19.5 kilometres south-west of Dunsborough.
The subject site has conservation zoned lots to the north and south, LeeuwinNaturalist National Park to the west, and viticulture/tourism zone land to the east.

Planning framework

Section 143 of the PD Act provides that the respondent, after considering any objections or recommendations in relation to a proposed subdivision forwarded to it, as well as any advice of a relevant environmental condition forwarded to it, may either: approve the plan of subdivision; refuse to approve the plan of subdivision or approve the plan of subdivision and require the applicant for approval to comply with such conditions as the respondent thinks fit. In giving approval to subdivide land, the respondent is required to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme unless one of the exceptions in s 138(3) of the PD Act apply: s138(2) of the PD Act.
Where, as is the case here, the respondent has decided to refuse to approve a plan of subdivision, the applicant may apply to the Tribunal for a review of that decision: s 251(1) of the PD Act. Section 241(1) of the PD Act provides that in determining an application for review in accordance with Pt 14 of the PD Act (which this application is), the Tribunal is to have:
… due regard to relevant planning considerations including —
(a)any State planning policy which may affect the subject matter of the application; and
…
The subject site is zoned 'Conservation' under the City of Busselton Local Planning Scheme No. 21 (LPS 21 or Scheme). Clause 3.2.10 of LPS 21 provides the 'Objective' and 'Policies' for the 'Conservation' zone as follows:
Objective
To restrict the type and scale of development which will be considered on lands possessing special aesthetic, ecological or conservation values to those compatible with such environments.
Policies
a)To allow development only where -
(i)it can be demonstrated that such development can be carried out in a manner that minimises risks from natural hazards, functions efficiently and does not detract from the scenic quality of the land; and
(ii)such development is unlikely to have a significant detrimental effect on the growth of native plant communities, the survival of native wildlife populations and the provision and quality of habitats for both indigenous and migratory species.
b)In satisfying a) above, there is a general presumption that development shall be in a clustered form.
c)To support subdivision only where –
(i)there is no detrimental impact on the aesthetic, conservation or ecological values of the land and where the objective of retention of these values of the land in perpetuity will be achieved;
(ii)for a lot 40 hectares or greater at 7 September 1999, subdivision based on a ratio of one lot per 20 hectares, preferably in a clustered form;
(iii)for a lot less than 40 hectares at 7 September 1999 , subdivision of one additional lot, preferably in a clustered form; and
(iv)consistent with State Planning Policy No. 6.1 - Leeuwin-Naturaliste Ridge where applicable.
d)To prohibit the clearing of any vegetation on the land, unless required for fire breaks, dwellings or associated outbuildings within defined building envelopes, or to allow for vehicular access to such buildings.
In the 'Conservation' zone, trees and vegetation may be cleared only with development approval: cl 4.30.2 of LPS 21. Prior to subdivision of land in this zone, the subdivider is to undertake a vegetation survey to the satisfaction of DPAW and the local government: cl 4.36 of LPS 21.
Clause 4.32.4 of LPS 21 provides:
In the Conservation zone –
a)all development must be located within an approved building envelope (as may be shown on a Structure Plan, Local Development Plan or approved building envelope plan) or in such other manner that may be identified on the Structure Plan or Local Development Plan. Each building envelope is to be located to the satisfaction of local government which shall, in determining such, ensure -
(i)the preservation of remnant vegetation is maximised;
(ii)the maintenance of landscape values of the site and the general area; and
(iii)there is no adverse or potential impact on watercourses, wetlands, river or estuary systems or groundwater.
b)where a building envelope has not been specified, the dwelling and any incidental development must be contained within a circular area of land with a radius 30 metres measured from the centre of the innermost building or as otherwise required on a Structure Plan or Local Development Plan.
Clause 5.13.1 of LPS 21 provides:
A Designated Bushfire Prone Area is an area designated as Bush Fire Prone on the Bush Fire Hazard Assessment maps. Dwelling construction within an identified area will be subject to the relevant bushfire prone area building requirements pursuant to the Building Code of Australia, Australian Standard 3959 – 2009 and otherwise as set out pursuant to the Scheme.
The subject site is located within Precinct 8 Western Coastal under the City of Busselton's Shire of Busselton Local Rural Planning Strategy 2006 (LRS). The vision for this precinct is contained in cl 7.8.5 of the LRS, which provides:
Retain and conserve the natural environment and rural landscape values and character of the area in balance with limited tourism development.
The precinct objectives are specified in cl 7.8.6 of the LRS as follows:
•To ensure that the planning in this precinct is consistent with the LNRSPP and Scheme provisions.
Environment
•To protect the coastal environment through the management of access and provision of appropriate infrastructure.
•To protect water quality and environmental flows in watercourses by restriction of dams, particularly on-stream dams, and the control of dam sizes.
•To protect biodiversity values of remnant vegetation with an emphasis on poorly represented vegetation, priority flora and DRF, and control of environmental weeds.
•To protect and encourage re-establishment of environmental corridors and buffers particularly in proximity to the National Park, connection of reserves and remnant vegetation on private property.
•To protect habitat and vegetation corridors required by the threatened Western Ringtail Possum.
•To promote weed and feral animal management.
•To promote the efficient use/re-use of water in agricultural and other uses.
•To promote nutrient management and the use of nutrient management plans.
Economic
•To facilitate the ongoing expansion of rural tourism development where it will not impact on landscape, environmental and other values and character of the area.
•To support tourism and other forms of development consistent with the settlement and nodal hierarchy of the LNRSPP.
Social
•To maintain and protect the unique rural and natural landscapes and land uses and their contribution to the character of the region as a priority.
•To provide an appropriate level of infrastructure and managed access to the coast and other recreational assets.
•To limit development to existing nodes established under the LNRSPP and within existing planning parameters to ensure the high values of the area are not impacted upon by development.
•To recognise and protect Aboriginal and European cultural heritage.
Subdivision criteria is specified in cl 7.8.8 of the LRS, which relevantly provides:
…
•In considering subdivision and development conditions the Shire may recommend or impose conditions which address land management and environmental management including, but not limited to nutrient export, protection of surface and ground water, conservation of remnant vegetation, application of buffers and setting aside areas for revegetation.
…
•In accordance with adopted structure plans and development guide plans for tourism development in existing zoned areas.
•Rural residential subdivision is limited to existing 'Rural Residential' zones and is to be in accordance with adopted Structure and Development Guide Plans and the LNRSPP.
•In accordance with the Natural Landscape Amenity criteria in the LNRSPP except where varied by the 'Conservation' and 'Rural Landscape' zone provisions pursuant to the Scheme. Variations between the LNRSPP and the Scheme will be resolved through the Local Planning Scheme review process.
•In accordance with the Biodiversity Incentive Strategy (2002).
The City of Busselton has a draft Local Planning Strategy (Draft Strategy) which has been advertised and adopted for final approval in 2016 by the City of Busselton's Council. That Draft Strategy has not been endorsed by the respondent. Nothing turns on any of the provisions of this document.
Relevant State policies for this matter include State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7), the related Guidelines for Planning in Bushfire Prone Areas (Guidelines), State Planning Policy 3.4 - Natural Hazards and Disasters and State Planning Policy 6.1 - Leeuwin-Naturaliste Ridge Policy (SPP 6.1).
The subject site is partially within the 'Ridge Landscape Amenity Area' and partly within the 'Principal Ridge Protection Area' as identified in SPP 6.1.
The respondent's Development Control Policy 1.1 Subdivision of Land - General Principles (DC 1.1) is also relied upon by the respondent.

Issues

Although the parties disagreed, in their Statements of Issues Facts and Contentions in relation to what the issues before the Tribunal in these proceedings were, at the hearing of the matter it was clear that there were, broadly speaking two main issues. One is the issue of bushfire and the consistency or otherwise of the proposed subdivision with SPP 3.7. and the Guidelines. The other is the lack of direct frontage to a public road of proposed Lot 2 and the consistency or otherwise of the proposed subdivision with DC 1.1. Of course, if the proposed subdivision is not in accordance with the requirements of either of those policies, it is necessary to consider whether there is a reason to depart from the policies in the circumstances of this case.

In its referral response to the respondent, the City of Busselton's Statutory Planning Coordinator stated:
…
3.The proposed subdivision has not addressed the provisions as outlined in Clause 5.36 of the Scheme where a vegetation survey shall be undertaken in relation to the specific number and species of rare, endangered or otherwise significant vegetation within the lots, in particular building envelopes and vehicle access areas and appropriate conservation measures to be implemented. It is considered that the amount of clearing required to achieve an acceptable bushfire solution will be detrimental to the conversation [sic] values of the site. This is not consistent with the Policies and Objectives of the Conservation zone as prescribed under the Scheme …
However, neither of the planners who gave evidence at the hearing, Mr Peter Graham Wright and Mr Stephen Geoffrey Allerding, gave any evidence to the effect that the proposed subdivision is inconsistent with LPS 17. In addition, the respondent's opening and closing submissions did not raise this as an issue. However, one of the respondent's without prejudice draft conditions requires a bushland management plan that includes a spring flora, vegetation condition and fauna survey to be prepared.
To put the issues in the correct context, the Tribunal is required to determine whether the correct and preferable decision is that the proposed subdivision should be approved (with or without conditions) or refused, having regard to the relevant planning framework, and in particular, SPP 3.7, the Guidelines and DC 1.1.

Bushfire

The Tribunal acknowledges that the following summary of the applicant's position is taken substantially from the applicant's written outline of opening submissions.
SPP 3.7 does not require that there be no increase at all in the threat of bushfire to people property or infrastructure. Rather, as is seen in cl 2 of SPP 3.7, the intention of the policy is to 'implement effective, riskbased land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure'.
SPP 3.7 recognises different roles to be played by Bushfire Hazard Level (BHL) and Bushfire Attack Level (BAL) assessments. BHL, which is a broad brush assessment is carried out for higher level strategic planning stages where the lot layout is not known. BAL assessments are to be carried out for subdivision and development applications.
BAL is defined in SPP 3.7 as:
Bushfire Attack Level (BAL) as set out in the Australian Standard 3959: Construction of buildings in bushfire prone areas (AS 3959), as referenced in the Building Code of Australia (as amended).
The Guidelines contain the same definition of BAL. Clause 1.5.3A in AS 3959 defines BAL as:
A means of measuring the severity of a building's potential exposure to ember attack, radiant heat and direct flame contact, using increments of radiant heat expressed in kilowatts per metre squared, and the basis for establishing the requirements for construction to improve protection of building elements from attack by bushfire.
By definition, therefore, a BAL is capable of being calculated, expressed and understood only in the context of an actual or proposed building. This is confirmed by the methodology dictated by AS 3959 for the calculation of a BAL, which provides two methods for calculating a BAL, both of which include a step concerned with the calculation of the distance of the 'site from classified vegetation'. 'Site' is defined in cl 1.5.26 of AS 3959 as 'the part of the allotment of land on which a building stands or is to be erected'.
In cl 4.3 of the Guidelines BAL assessment is similarly described by reference to impact on buildings:
A Bushfire Attack Level (BAL) assessment is the means of measuring the severity of a buildings' [sic] potential exposure to ember attack, radiant heat and direct flame contact using increments of radiant heat expressed in kW/m². They form the basis for establishing the requirements for construction to improve protection of building elements from attack by bushfire.
Therefore, where at Appendix Three of the Guidelines, it is stated that a BAL Contour Map is to include the subject site and all land within 150 metres of the external boundary of the subject site, it must mean the area within which any buildings are to be located and 150 metres around that area.
When one understands the proper meaning of BAL as defined by SPP 3.7 and the Guidelines, the proposed subdivision will, on completion, provide for BAL lower than BAL 40 or BAL FZ in relation to the building envelope for proposed Lot 3. The dwelling on proposed Lot 2 is already constructed and therefore it has already been considered and assessed in relation to its compliance with SPP 3.7 and proposed Lot 1 will not have any dwelling and therefore does not need to be assessed under SPP 3.7. The proposed subdivision therefore complies with cl 6.4 of SPP 3.7.
In relation to the bushfire protection elements, the proposed subdivision complies with the acceptable solution for element one as, according to the evidence of two bushfire consultants, Mr Michael Colin Scott and Mr Rodney Leith Rose, the BAL level for the building envelope, will, on completion, be BAL 29 or below.
The applicant accepts that the proposed subdivision does not comply with the acceptable solutions in element three of the bushfire protection criteria. However, Mr Scott and Mr Rose propose a performance solution whereby a number of measures are relied upon to render proposed Lot 3 a suitable location to stay and shelter if necessary during any bushfire event. Mr Rose considers the proposed performance solution will provide a level of safety that equals or exceeds the level of safety provided by the acceptable solution of ensuring at least two alternative access routes specified in the Guidelines. Therefore the proposed subdivision complies with the Guidelines and meets the objective in cl 5.1 of SPP 3.7.
In the alternative, if it is not accepted that the proposed subdivision complies with the Guidelines and SPP 3.7, there is good reason to depart from the policy in the circumstances of this case because the proposed performance solution is as safe, or safer than strict compliance with the policy would be.
The respondent submits that the proposed subdivision is inconsistent with SPP 3.7 in four ways. Firstly, properly understood, cl 6.7 of SPP 3.7 requires consideration of whether the subject site is appropriate for subdivision, which brings an intensification of land use, at all. The respondent submits that as all of the subject site, other than the building envelope for proposed Lot 3 and the area around the existing dwelling on proposed Lot 2, has a BAL of 40 or Flame Zone (FZ) or a BHL of extreme.
Secondly, the applicant has not provided all of information required by SPP 3.7 in relation to the proposed subdivision because its bushfire consultants have provided BAL contour maps that only provide the BAL contours of the part of the subject site in which the building envelope and accompanying Asset Protection Zone (APZ) are to be located in proposed Lot 3. The respondent says that SPP 3.7 makes it clear that a BAL Contour Map is required to show the BAL contours across the entire subject site.
Thirdly, when assessing the proposed subdivision against the bushfire protection criteria in the Guidelines, the respondent says the proposed subdivision does not meet the acceptable solutions or the performance principles of elements one (location) and three (vehicular access).
Finally, the respondent submits that the Tribunal should not depart from policy in the circumstances of this case and approve the proposed subdivision because there is significant departure from SPP 3.7 and the Guidelines. Rather than attempt to summarise the reasons given in support of this submission, I reproduce the transcript of the relevant part of the respondent's counsel's opening submissions: ts 8-9, 25 March 2019.
…
Overall, senior member, in relation to the question of bushfire, it is apparent that the applicant will be, effectively, inviting the tribunal to depart substantially from the requirements of SPP3.7 and the guidelines, in this case, on the basis of the applicant's claim that the design solution provides an acceptably safe solution when the risks associated with this development are assessed. In this regard, we submit that there are three points which the tribunal should keep in mind in assessing this argument.
First, the policy intent of SPP3.7 is to implement risk-based land use planning and development to preserve life and to reduce the impact of bushfire. The bushfire protection criteria in the guidelines have been provided precisely to assist in the assessment of proposed bushfire risk management measures. Essentially, the requirements of SPP3.7 and the guidelines represent the policy choices that have been made by the State as to (1), whether the bushfire risk in a given locality is capable of being managed and (2), whether that risk has been adequately managed through the risk management measures set out in the guidelines.
The second point we would seek to make is that the role of a tribunal, which stands in the shoes of the WAPC in this application, to determine this particular subdivision application, is not to engage in a broadranging enquiry as to whether the policy decisions that have been made by the State are the correct ones. The State has made decisions as to - through the promulgation of a State planning policy. A process which, under part 3 of the Planning and Development Act, takes into account the views of a wide range of stakeholders, including the agency with primary responsibility for fire and emergency services in this State, and ultimately it leads to a policy document that receives the approval of the Governor.
As the tribunal noted in the recent decision of Bennett v WAPC, which is [2018] WASAT 32, particularly at paragraphs 107 and 108, the thrust of the applicant's arguments seemed to be that the tribunal has a legitimate role to effectively improve or reconsider the State's bushfire policy in determining what is essentially a single subdivision application (indistinct) at issue in this case. These arguments misconceive the tribunal's role in a review.
The substantive question for the tribunal is whether, in the particular circumstances of the matter before it and in seeking to produce the correct and preferable decision, there are (indistinct) and legitimate reasons to depart from the existing adopted policy. The third point we would seek to make is that the alternative solution put forward by the applicant is not one which has received the endorsement of the respondent or DFES or any other public authority.
The tribunal should, we submit, be cautious about placing reliance on such a solution in the face of a policy framework which (A), expressly states, as one its principles objectives at clause 5.1, the avoidance of any increase in the threat of bushfire to people, property and infrastructure and which places the preservation of life as paramount and which (B), strongly recommends, at clause 6.1(1), that decision-makers apply the precautionary principle where a landowner or proponent has not satisfactorily demonstrated the relevant policy measures - which is (indistinct) those set out in SPP3.7 and the guidelines have been addressed.
So that's the comments that, senior member, we wish to make about bushfire[.]

Is the proposed subdivision consistent with SPP 3.7 and the Guidelines

What information is required under SPP 3.7

The information to be provided with a subdivision application relating to land in a designated bushfire prone area (which the proposed subdivision is) is specified at cl 6.4 of SP 3.7 and relevantly includes:
a)a BAL Contour Map to determine the indicative acceptable BAL ratings across the subject site, in accordance with the Guidelines. …
b)the identification of any bushfire hazard issues arising from the BAL Contour Map; and
c)an assessment against the bushfire protection criteria requirements contained within the Guidelines demonstrating compliance within the boundary of the subdivision site.
At cl 4.2 of the Guidelines it states:
A Bushfire Attack Level (BAL) Contour Map is a scale map of the subject lot/s illustrating the potential radiant heat impacts and associated indicative BAL ratings in reference to any vegetation remaining within 100 metres of the assessment area after subdivision works are complete.
…
A BAL rating needs to be allocated to all areas identified as being bushfire prone on the Map of Bush Fire Prone Areas. … Further guidance and a sample map are provided at Appendix 3. …
At Appendix three, the following further information is provided:
What is a BAL Contour Map
A Bushfire Attack Level (BAL) Contour Map is a scale map of the subject lot/s showing the potential radiant heat impacts and associated indicative BAL ratings in reference to any classified vegetation remaining within the assessment area.
The BAL Contour Map sets a range of indicative BAL ratings that are determined on the intended end state of the subject site once earthworks, clearing and/or landscaping have been completed.
When a BAL Contour Map should be used
A BAL Contour Map should be used for strategic planning proposals where appropriate and at the subdivision stage. The BAL contours will assist by identifying:
•land suitable for development; and
•bushfire risk management measures to reduce the potential bushfire impact to an acceptable level, such as BAL-29 or below.
…
BAL Contour Map Assessment Methodology
A BAL Contour Map should be prepared in accordance with this Appendix and the principles of Australian Standard (AS) 3959.
Step One: Identify vegetation type(s) and slope (Output: Vegetation Classification Map)
How to create a Vegetation Classification Map
•Include the subject site and all land within 150 metres of the external boundary of the subject site in a vegetation assessment area.
…
Step Two: Map the BAL contours
(Output: BAL Contour Map)
How to create a BAL Contour Map based on analysis of the resultant BAL ratings
•Use an appropriate aerial photo (where available) out to 150 metres from the subject site and indicate this as a vegetation assessment area. …
•Define the BAL Contour assessment area that is to be the subject of the BAL Contour map by indicating the area within 100 metres of the external boundary of the subject site.
…
Information to include in a BAL Contour Map
•A BAL contour map should be at a scale where individual lots can be clearly identified.
•An aerial image of the subject site and surrounding area should form the base map can be overlaid with the following information:
–boundaries of the subject site, the surrounding 150 metre vegetation assessment area and 100 metre BAL Contour assessment area
–the proposed lot layout, including proposed lot numbers, building envelope and building footprint (if appropriate)
…
As set out in the applicant's submissions, the definition of BAL in both SPP 3.7 and the Guidelines is the definition of that term in AS 3959. In AS 3959, BAL is defined by reference to impacts on, and protection of, buildings. The methodology for determining BAL levels in AS 3959 requires determining the distance from the 'site' to vegetation. The term 'site' is defined in AS 3959 as the part of the lot on which a building stands or is to be erected.
However, SPP 3.7 and the Guidelines introduce a new concept that is not contained in AS 3959, that is, a BAL Contour Map. The definition is the same in each document, and for convenience I repeat that definition here:
A BAL Contour Map is a scale map of the subject lot/s illustrating the potential radiant heat impacts and associated indicative BAL ratings in reference to any classified vegetation remaining within 100 metres of the assessment area after the development is complete. The intent of the BAL Contour Map is to identify land suitable for development based on the indicate BAL[.]
The term 'subject lot/s' is not defined in either SPP 3.7 or the Guidelines. However, this term is widely used by planners and is commonly understood to mean the entirety of the land proposed to be developed or subdivided.
The reference in the definition to the 'assessment area' can only be understood by having regard to the methodology for completing a BAL Contour Map in Appendix three. The plain text used conveys that the BAL Contour Map is to include the entire 'subject lot/s' and an area outside the boundary of the lot.
The applicant's argument requires one to read 'subject lot/s' as having a meaning different to its ordinary meaning. The Tribunal accepts that the concept of BAL is a concept that deals with the impact of bushfire on buildings. However, I see no reason why the fact that if the subject lot is particularly large the BAL Contour Map may contain BAL levels which are in real terms potentially meaningless because of the distance from any proposed building, should justify a reading of SPP 3.7 and the Guidelines that is inconsistent with the plain text. In many cases, there is no need to identify a building envelope in a subdivision application, and in that case, it would be necessary to know the BAL levels on all of the subject site as one cannot know precisely where any building will be located.
In cl 1.3 of the Guidelines it is stated that where there is a discrepancy between AS 3959 and the Guidelines, AS 3959 prevails. Appendix three does, at the commencement of its explanation of BAL Contour Map Assessment Methodology, state that the map should be prepared in accordance with appendix three and the principles of AS 3959. However, it is hard to understand what the reference to AS 3959 is meant to convey, as that document does not make reference to a BAL Contour map. I think it can only mean that, while the BAL Contour map has to show BAL levels for the whole subject site and 100 metres outside the boundary of the subject site, nonetheless when one considers the bushfire hazards, one must focus on the concept of BAL in AS 3959, which focuses analysis on the impact on, and protection for, buildings.
The applicant has not provided a BAL Contour Map that covers the whole of the subject site. Nor has it provided an identification of the bushfire hazard issues arising from the BAL Contour Map in relation to the whole of the subject site. This means that, unless there was a reason to depart from the policy, the proposed subdivision should be refused having regard to the precautionary principle: cl 6.11 of SPP 3.7.
In this case the Tribunal does effectively know what a BAL Contour Map would show if it had covered the entirety of the subject site because Mr Parker provided that information. There is no real dispute that a BAL Contour Map would show that the parts of the subject site outside of the area shown in the BAL Contour Maps provided by Mr Scott and Mr Rose, other than the area surrounding the existing dwellings in proposed lot two, is BAL 40 or BAL FZ.
The Tribunal also has evidence about the bushfire hazard issues arising in relation to proposed Lot 2, because a Bushfire Management Plan (BMP) was prepared prior to the development of the dwelling in that area of the subject site: Exhibit 9, Attachment JAP3.
The applicant's proposal contemplates that proposed Lot 1 would not have any dwelling built on it. The applicant accepted, if the Tribunal determined that it could not be satisfied that a conservation covenant would achieve this end, a proposal that the proposed subdivision be amended to create only two lots, with proposed Lot 1 and proposed Lot 3 amalgamated into a single lot, with the part of that lot that represents the area of what was proposed Lot 1 being subject to a conservation covenant.

Proposed Lot 2 is already developed, which development was approved by the City of Busselton in 2016, with substantially the same planning framework in place as exists now, albeit the Guidelines have since undergone some amendments. It is also a part of the subject site that is physically separated from the rest of the subject site, with no way to access by vehicle the part of the subject site that is developed from the rest of the subject site.
In all of those quite unusual circumstances, the Tribunal is satisfied that there is reason to depart from the precautionary principle in this case despite the failure of the applicant to provide all the information required by SPP 3.7.

Consistency with cl 6.7 of SPP 3.7

Clause 6.7 of SPP 3.7 provides:
Strategic planning proposals, subdivision or development applications which will result in the introduction or intensification of development or land use in an area that has or will, on completion, have an extreme BHL and/or BAL-40 or BAL-FZ will not be supported unless:
a)the proposal is considered to be minor development to which policy measure 6.7.1 applies; or
b)the proposal is considered to be unavoidable development to which policy measure 6.7.2 applies.
The terms 'Minor development' and 'Unavoidable development' are defined in cl 7 of SPP 3.7. It is not in dispute that the proposed subdivision does not come within the meaning of either of those terms.
In order to assess the proposed subdivision against cl 6.7 of SPP 3.7, it is necessary to understand what is meant by that provision. In particular, what is the 'area' that is to be considered? The term is not defined in SPP 3.7 or the Guidelines.
I am persuaded, contrary to the respondent's position, that the relevant 'area' is the area within which bushfire might be expected to impact on a building, as indicated by the provisions of AS 3959, the Guidelines and material referenced in the Guidelines. There are a number of reasons for this conclusion.
Clause 6.7 of SPP 3.7 does not refer to 'the subject lot/s', which phrase is used elsewhere in the policy. While the drafters of policy are not parliamentary counsel and may not necessarily understand ordinary drafting conventions, nonetheless, SPP 3.7 and the Guidelines, which are intended to be read together, do seem to use the phrase 'subject lot/s', or alternatively 'lots', consistently throughout.
As indicated above, BAL is defined by reference to AS 3959, which explains that concept by reference to impacts on, and protection for, buildings.
The Guidelines provide for two circumstances where a BAL assessment basic (a simplified form of BAL assessment) may be carried out: cl 3.2.1 of the Guidelines. These are where:
•land has been cleared since the Map of Bush Fire Prone Areas was released and the site no longer contains, or is within 100 metres of bushfire prone vegetation; or
•the site is of a significant enough size that the building envelope to which the proposal relates is not within 100 metres of bushfire prone vegetation.
If that results in a classification of BAL-Low, the policy requirements of SPP 3.7 do not apply: cl 3.2.1 of the Guidelines. There is nothing in the relevant Fact Sheet that requires assessment of, or has regard to, the BAL assessment of the remaining areas of the subject lot in carrying out the BAL assessment basic. While the subject site does not have 100 metres of cleared land surrounding the buildings and building envelope, this provision tends to support the interpretation of 'area' that I have taken because where a building envelope is surrounded by sufficient cleared land, whether or not the remaining land is bushfire prone, SPP 3.7 and the Guidelines will not apply at all.
Part 2 of the Guidelines gives a policy framework overview. In cl 2.1 and in Figure 1: Western Australian planning hierarchy, it is explained that at the top of the hierarchy is higher order strategic planning documents such as Frameworks, Region schemes, Sub-regional strategies and Sub-regional structure plans. In the next level down is Region scheme amendments, District structure plans, Local planning strategies, Local planning schemes and amendments, local structure plans and master plans. Under that is Subdivisions with 'Development Applications' as the lowest level in the hierarchy.
Within cl 2.1 of the Guidelines is the following explanation:
….
At the regional and sub-regional scale, the planning assessment should consider the likely bushfire hazard in areas proposed for future development, and potential bushfire risk management of such areas.
At the district scale, the planning assessment should consider the appropriate use and zoning of land in areas proposed for future development. A Bushfire Hazard Level assessment should be used to inform how future development could be generally sited to ensure the bushfire protection criteria should be used to inform how future development could be generally sited to ensure the bushfire protection criteria can be achieved at subsequent stages of the planning process. Approval of a proposal should be based on a strong certainty that the bushfire risk can be reduced or managed to an appropriate level to support future development.
Statutory planning is founded on legislation and regulations and is guided by strategic planning documents. Statutory planning controls land uses and development through assessment and determination of subdivision applications, local development plans and development applications.
Planning proposals in designated bushfire prone areas must be consistent with bushfire considerations in strategic planning documents to ensure coordinated, holistic bushfire risk management measures are achieved. Bushfire risk management measures should not be left to the statutory planning stage.
That it is the higher level, strategic planning process, at which the identification of land that is suitable for development is supposed to occur is reinforced by the explanations of the purpose of each stage of the planning hierarchy and scope to address bushfire risk in Table 1: SPP 3.7 in the planning process on page six of the Guidelines.
The assessment tool that is to be used at strategic planning stages is the BHL. This is entirely sensible as the BHL focuses on vegetation and slope, and does not have regard to impact on buildings. When one assesses a lot using BHL, one gets meaningful information over the entire site no matter how large the lot, or where any buildings may ultimately be located.
It is the case that cl 5.3 of the Guidelines does indicate that decisions about whether subdivision should be allowed at all may occur at the subdivision stage. Relevantly, cl 5.3 of the Guidelines provides:
Subdivision proposals should be used as an opportunity to consider the location, siting and design, and infrastructure available to the lots to achieve a combination of bushfire protection measures.
Subdivision in bushfire prone areas should:
•be located within close proximity to existing settlements and/or within existing cleared areas;
•minimise the interface between the subdivision area and the bushfire hazard;
…
In cl 5.3.1 of the Guidelines is the following passage:
When a subdivision has been designed in accordance with an endorsed structure plan that did not include consideration of bushfire risk, the decision-maker will need to apply the precautionary principle in determining the application, having regard to SPP 3.7 and the bushfire protection criteria contained in these Guidelines. There may be situations where information becomes available subsequent to the approval of structure plans which warrant planning measures being taken to address previously unidentified hazards. This may include refusal of subdivision deemed inappropriate on the grounds of bushfire risk.
So, while assessment of whether land is suitable for subdivision in the circumstances may occur at subdivision application stage, it seems this is intended as a back-up that is applied where the hazards have not been identified at the strategic planning level.
Overall, it is the BHL assessment, which is to be used at the strategic planning stages (see Appendix two of the Guidelines), and not the BAL assessment, which is to be used in relation to decisions in the lower levels of the planning hierarchy, where sufficient detail of lot layouts is known (and therefore potential locations for buildings are able to be identified), that is generally intended to be used in order to identify whether land is suitable for development. For clarity, I should explain that I am satisfied that the references to 'development' in this context in SPP 3.7 and the Guidelines, having regard to the parts of those policies referred to above, is a reference to the broader sense of 'development', which includes subdivision and development. The BHL assessment is an assessment that applies generally over a whole lot and is focused on vegetation and slope. It does not have any connection to impact on, or protection for, buildings. The BAL assessment, which is focused on buildings, provides little meaning in circumstances where a lot is sufficiently large that a BAL Contour Map will result in BAL contour lines more than 150 metres away from any building.
Given that it is contemplated that consideration of whether land is suitable to be subdivided may occur at subdivision stage, it is difficult to understand why it is only BAL that is able to be used to assess a subdivision application. In the majority of cases this may not be an issue, but if, as is the case here, the proposed lots are very large, it may be that a BAL Contour Map provides information that is meaningless in assessing whether the land is suitable for subdivision. In these cases, given that the relevant 'area' in cl 6.7 of SPP 3.7 is the area within which one might expect buildings to be impacted, if there is a building envelope proposed, that is the area for consideration. It seems to me that if land has not been assessed for its suitability for subdivision at a strategic planning stage, where BHL assessment would have occurred, there is a danger that this issue cannot always be properly addressed at the subdivision stage if only BAL can be used for the assessment. The BMP that supported the development of the single dwelling on the subject site shows that the subject site as a whole has an extreme BHL. The respondent's argument that cl 6.7 of SPP 3.7 would prevent subdivision of the subject site in that circumstance unless there was a reason to depart from SPP 3.7 is sound when considering that BHL assessment. The assessment is entirely different when one uses BAL only, as can be seen in this case.
In this case, Mr Rose and Mr Scott suggest that there be a requirement that the building envelope and APZ for proposed Lot 3 be in accordance with those proposed by Mr Rose: see the BAL Contour Map attached to Exhibit 8. From that BAL Contour Map it is apparent that upon completion, proposed Lot 3 will have BAL 12.5 in the building envelope, which Mr Scott and Mr Rose say is the relevant area to have regard to for the purposes of cl 6.7 of SPP 3.7. Mr Parker was of the view that the relevant area for the purposes of that clause is the whole site. For the reasons given above, I do not accept Mr Parker's interpretation of cl 6.7 of SPP 3.7.
In my view, having regard to the policy context described above, and having regard to the evidence of Mr Rose and Mr Scott, whose evidence I prefer on this issue, where a subdivision proposal relates to sufficiently large lots and specifies where building envelopes are to be located, then it is consistent with the intent of SPP 3.7 to understand the 'area' to be considered for the purposes of cl 6.7 of SPP 3.7 to be the area of the building envelope.
The Tribunal finds that proposed Lot 3 is consistent with cl 6.7 of SPP 3.7.
However, in this case, not all of the proposed lots have building envelopes identified. In those circumstances, the relevant 'area' will be the place where buildings exist, if they exist, or alternatively, if it is not known where buildings are to be located within the lot, the 'area' must include the whole lot(s).
Proposed Lot 2 does not contemplate any building envelope as the dwelling and associated structures have already been built.
The applicant submits that there is no need for a building envelope, or an assessment of the existing dwelling against the provisions of SPP 3.7 and the Guidelines because the single dwelling and associated structures have already been assessed under these policies at the development application stage.
The difficulty with the applicant's submission is that proposed Lot 2 is part of a new subdivision application. While presumably the dwelling was assessed at the development application stage (SPP 3.7 was published in December 2015), SPP 3.7 requires assessment also in relation to a subdivision application. One might ordinarily expect a subdivision application to precede a development application, and SPP 3.7 contemplates the processes occurring in that order, but there is nothing in SPP 3.7 or the Guidelines that indicates that it is appropriate to ignore the policy requirements if a subdivision application post-dates a development application.
In Appendix three, at page 58 of the Guidelines, it is stated that where a BAL Contour Map has been prepared at a preceding planning stage, it may be used in place of a site-specific BAL assessment at the development application stage and/or building permit stage. I see no reason why this should not be applied equally where a BAL Contour Map has been provided in relation to a development application and a subdivision application comes afterwards.
Unfortunately, the BMP prepared for the development that exists on proposed Lot 2 did not include a BAL Contour Map: Exhibit 9, Attachment JAP3. However, on page 11 of the BMP, the author indicates that a hazard separation zone is to be created on all down slopes outside of the asset protection zone, which together provide for a cleared area of 45 metres from the buildings. The author states that this will give a BAL 29 rating at the building.
The Tribunal is satisfied that proposed Lot 2 is consistent with cl 6.7 of SPP 3.7
Proposed Lot 1 also does not have any building envelope identified. The Tribunal has no information about the BAL levels on proposed Lot 1.
The applicant submits that neither of those things is necessary as it is intended that proposed Lot 1 be the subject of a conservation covenant over the entire lot that prevents any development on the proposed lot.
Communications from the Department of Planning, Lands and Heritage (DPLH) to Mr Wright indicate that DPLH is willing to accept a conservation covenant over proposed Lot 1. However, it is apparent that the DLPH officer's view is that any conservation covenant would not prevent the construction of a single dwelling on the proposed lot and DLPHA would prefer that the location for a building envelope should be identified and excluded from the covenant: see Exhibit 2, tab 22.
The Tribunal is not satisfied that the mechanism proposed by the applicant, that is to place a conservation covenant over proposed Lot 1, could guarantee that no development can ever take place on proposed Lot 1. On that basis, the Tribunal would not be prepared to approve a subdivision application that included proposed Lot 1 without having information about the location of a building envelope and the BAL at that building envelope, in order to assess whether the proposed lot was capable of complying with cl 6.7 of SPP 3.7, or for some reason should nonetheless be approved.
As indicated earlier, the applicant did indicate, at the conclusion of the hearing, that it would be prepared to accept an approval for a two lot subdivision, with proposed Lot 1 and proposed Lot 3 amalgamated, and with a conservation covenant on the area that was intended for proposed Lot 1, if the Tribunal was not satisfied that proposed Lot 1 could not be prevented from being developed as proposed.
If approval of the proposed subdivision is otherwise the correct and preferable decision, the Tribunal would approve an amended subdivision application that creates two lots rather than three. While this might ordinarily cause the subdivision application to be a substantially different application to the one the subject of review, in the circumstances of this case, where it was always proposed that although a third lot was to be created, there would only ever be two developable lots, and the vegetation in proposed Lot 1 would be wholly protected by a conservation covenant, I am satisfied that if the proposed subdivision is amended in the way indicated, it will not be a substantially different application.

Compliance with bushfire protection criteria

Two of the bushfire protection criteria described in Appendix four of the Guidelines are in issue in these proceedings. Element 1: Location (Element 1) (found at Exhibit 2, tab 24, page 433) and Element 3: Vehicular access (Element 3) (found at Exhibit 2, tab 24, page 440).
How the bushfire protection criteria are to be read is explained in cl 4.5 of the Guidelines. Each of the four elements have an intent, acceptable solutions and a performance principle.
The intent 'outlines the desired outcome for the element, and reflects identified planning and policy requirements in respect of each issue': Exhibit 2, page 395. Acceptable solutions provide one way of meeting the element's intent. They are intended to provide 'a straightforward pathway to assessment and approval'. At one point it is stated that 'Compliance with the acceptable solutions … automatically achieves the intent of the relevant bushfire protection element'. Compliance with all applicable acceptable solutions is required: cl 4.5.2.1 of the Guidelines.
The performance principle is a general statement of how best to achieve the intent of the element. Clause 4.5.2.2 of the Guidelines expands further in relation to the performance principles:
The performance principles have been designed so they may be used where a proposal cannot comply with the acceptable solution(s) or it may be inappropriate to do so, to achieve the intent of each element. … Performance principle based solution(s) propose an alternative to those set out in the acceptable solution(s); it is not a justification for noncompliance. … All performance principle-based solution(s) require discretion on the part of the decision-maker, informed by advice from the Department of Fire and Emergency Services …
To demonstrate compliance, the performance principle-based solution(s) must provide substantiated evidence and clearly demonstrate/document how the proposal, product, design or material can meet or exceed the intent and performance principle of the element, and more broadly, the objectives of the State planning policy. …
At cl 5.3 of the Guidelines it is stated that:
…
Where subdivision proposals contain features that do not comply with the acceptable solutions in the bushfire protection criteria (i.e. alternative solutions are proposed), the proposal should only be supported where the landowner/proponent provides written advice in support of the proposal from the relevant local government and the Department of Fire and Emergency Services. …
At cl 4.5.2 of the Guidelines it is explained that:
For a proposal to be compliant with SPP 3.7, the intent of each element of the bushfire protection criteria, as listed in Appendix 4 of these Guidelines must be satisfied. To satisfy compliance with the 'intent', either the acceptable solutions or the performance principles must be demonstrated. …

Compliance with Element 1

The intent of Element 1 is:
To ensure that strategic planning proposals, subdivision and development applications are located in areas with the least possible risk of bushfire to facilitate the protection of people, property and infrastructure.

The applicant submits that cl 3.7.1 of DC 1.1 allows public utilities and other services as well as vehicular and pedestrian access can be provided to a lot from a public road without the lot having direct frontage to the public road.
Proposed Lot 2 already exists as a de facto separate lot as that part of the subject site cannot be accessed by vehicle entering the part of the subject site that abuts Woodlands Road because of Wilyabrup Brook. The dwelling on the subject site (located within proposed Lot 2) already has a supply of electricity. The applicant submits that there is no reasonable likelihood of any other services or infrastructure being provided. Thus, in the circumstances of this case, there is no real need for direct frontage to a public road for proposed Lot 2.
The applicant further submits it is in the interests of the owner of proposed Lot 2 to properly maintain the easement access, and there is no real difference, in terms of pedestrians or vehicles being able to access the proposed lot, between the proposed access via easements providing access to a public road and a driveway providing access to a public road.
The applicant submitted that the approach of the Victorian Civil and Administrative Tribunal in Clarcor Pty Ltd v Maroondah City Council [2003 VCAT 435 (Clarcor) should be followed. In that decision, Senior Member Byard stated, at [10] that viable legal access to the land, including access or vehicles is important. However, as there was a carriageway easement in favour of the land to be subdivided he was satisfied that adequate and suitable legal access existed.
The respondent submits that the subject site currently has access to a public road, that is, Woodlands Road. The proposed subdivision will create a new lot, proposed Lot 2, which will not have direct frontage to the public road system. The respondent submits that the proposal to access proposed Lot 2 via easements over private land is contrary to cl 3.7.1 of DC 1.1.
The respondent submits that the requirement for direct public road frontage has a clear and important planning purpose of ensuring that residents of new lots will have access to the road system, emergency services, that visitors and others have a means of access to the new lots and that there is a means to provide service infrastructure to the new lots.
In closing, the respondent's counsel expanded the submission as follows at ts 277-280, 27 March 2019:
If I can turn, then, to the argument that the indirect access over the easement will provide a sufficient means of achieving the objectives of clause 3.7, we say it doesn't, and essentially the reason (indistinct) that all stem from the legal nature of an easement. An easement, of course, is a private property right. You've got a - in the case of an easement other than an easement in gross, which is not a dominant tenement and a servient tenement, and obviously, the people who are entitled at law to the benefit of the easement are the owners of the dominant tenement.
If I can take you, then, to the wording of particular easements in this case, first one is at page 26 of the bundle. Mr Jackson adverted to this in cross-examination this morning, I think, but if you look at the fourth line down, under clause 1, there's the words "hereby creates" in capitals, and following that are the operative words:
...for the benefit of the grantee, which expression includes successors (indistinct) transferees, registered proprietor
etcetera:
... full right and liberty for each of them -
and these are the critical words -
their visitors, tenants, servants, contractors, invitees and all other persons authorised by them.
And there's similar wording in the other one. I will take you to it very briefly. It's page 35 of the bundle, clause 3 at the top, from the end of - all of the three lines, it talks about:
...the grantee, along with tenants, servants, agents, workmen and persons authorised by the grantee.
Those are obviously fairly broad words. What they do not encompass, however, is anyone who is unknown to the owners of the land and who doesn't have their permission to be on the land. Effectively, you've got to be an invitee. Now, there might be some exceptions, of course, for people who have rights of entry, and examples that spring to mind obviously would be people like members of the emergency services such as police or fire services exercising statutory rights of entry, but otherwise, if you are a member of the public or someone - a representative of local government or someone of that kind, and you come to this land, you are not known to the owners of the land and you do not have their permission, express or implied, to enter on it, you would, in law, be committing a trespass to enter onto the easement, and that's reflected in a practical sense, of course, in the fact that you've got a great big sign there that says "private" the tribunal has seen, during the site visit, and really we (indistinct) fundamental issue with the easement.
A couple of consequences flow from that. The first I've kind of touched on already, and that is members of the public other than invitees cannot get to the boundary of the land (indistinct) more than a kilometre away at the beginning of the easement. Just to illustrate the kind of people who might want to get there and whom the applicant might not want to come on the land, it is conceivable, for instance, that you have a - an officer of DFES or an officer of the local government seeking to serve some sort of improvement under planning or building or bushfire legislation, and they can't get into the land in order to do that.
Obviously (indistinct) be another example, so that's the first problem: it doesn't actually provide public access. It's only for invitees of the owners. The second point is that, theoretically at least, because it's a private arrangement, it could be removed without the permission of the Planning Authority. Now, obviously, in a practical sense, that's going to carry very limited weight, because the - it's very unlikely that the owners of lot 2 would want to cut off their only access.
The third and more significant point is to do with the maintenance and the quality of the track. Now, as Mr Jackson quite rightly pointed out in cross-examination, there is provision that deals with that in the easements, and I will take you to that, so the first easement, if you turn back to page 25, clause 2, paragraph (a):
The grantee shall, at their expense, construct a gravel driveway and may seal that driveway if the grantee wishes to do so.
And then it talks about drains as well. (b) is about power cables, which I understand from Mr Allerding's evidence this morning may actually already be in place. The - (c) is a critical one, I think:
The grantee shall be responsible for the maintenance, repair and resurfacing and cleaning of the easement and shall pay the costs thereof.
On the second easement, the relevant provision is on page (indistinct) and it's under the heading Maintenance of Land, but I'm not going to read that all out, and now, effectively, we say, in respect of those, they're basically costs allocation provisions.
What they say is that, "The grantor has given you this land. If you want to make improvements to it, you have to pay for it." What it doesn't do is to describe any standard of maintenance, and also what it doesn't do is to prescribe a method for enforcement of those maintenance obligations. Importantly, that is a - a - it's a private arrangement between two parties. There's no public authority involved in the enforcement of the deed, and consequently, the other point to make, I suppose, is that there's no incentive for the grantor to enforce the maintenance obligations.
The only person who benefits from that compliance with those obligations is the grantee. So, there is one other provision I should perhaps draw your attention (indistinct) which one it's in now. That's right. It's at page 35, second paragraph of clause 5. It does refer to the grantee ceasing to use the grantee ceasing to use the affected land upon its becoming unfit for the passage of vehicles or other use under this deed.
Now, I suppose the obvious point to be made in response to all of that is that the grantee has a practical incentive to maintain the easement at least in a passable state for its own vehicles; otherwise it can't get to the land. Our response to that is that there is a range of conditions in which the road might still be usable. Now, it is quite conceivable that the - what the local government or the Planning Commissioner or any other public authority thinks might be an appropriate standard for the road might, in fact, be a much higher standard than the grantee considers is an appropriate standard, and in fact, that's illustrated in the dispute in this case over the conditions.
You've got the grantee, on the one hand, saying, "No. No. The current surface is fine. The current width of Woodlands Road in the easement is fine." I don't (indistinct) Woodlands Road. It's not the easement. I'm just trying to illustrate a general point, but you can have passing places. That deals with the passing issue, and on the other hand you've go the local government, I think, which suggested a condition saying, "No. No. It needs to be widened. You need to improve the clearance. You've got to" - think they say pave the surface as well, so all those kinds of disputes come up, and this is where clause 3.7.2 of DC1.1.
I took you through that earlier. Effectively, it illustrates a policy within DC1.1 that there should be some control by public authorities over the standard of access to the boundary of the lot. When you're dealing with new roads, you do that by the Commission imposing subdivision conditions saying, "You've got to construct a road to a particular standard." In this case, there is no power for the public authorities to control that standard, so while it's true that, as long as the owner of lot 2 can get their four wheel drive down there, they might be happy, that might well not be a standard which is acceptable to the public authorities.
I think that really all I have to say about the access issue. …
The respondent referred the Tribunal to Sharp and Western Australian Planning Commission [2010] WASAT 12 (Sharp) at [26], where Member McNab indicated that he saw no reason to depart from the policy position of requiring direct frontage to a public road just because an easement existed that provided access to a public road.
The Tribunal is not satisfied that the decision in Clarcor assists at all. There is no reference to any policy akin to DC 1.1 in that case. The Tribunal is also not significantly assisted by the Sharp decision as, with all due respect to the learned Member, there is no significant analysis as to why the Tribunal did not consider that there was any reason to depart from policy.
As I said in Boynton & Ors and Western Australian Planning Commission [2018] WASAT 60 at [39], cl 3.7.1 of DC 1.1 contains 'a sound policy position that has a clear, logical planning purpose and is consistently applied'. In my view, where a private access is proposed that encompasses the same sort of invitation or licence to enter private land that an open driveway leading into the private property may do (see for example Zerelli Holdings Pty Ltd v Williams (2012) 113 SASR 573; [2012] SASCFC 100 and the cases cited therein) then that private access may well meet the policy objective of DC 1.1 because it would sufficiently ensure vehicle access from the gazetted public road system even though it does not provide direct frontage to a constructed public road as required by cl 3.7 of DC 1.1. However, in this case, as was evident from the site view, the private easement access is barred at its entranced by a gate. That gate has a sign on it that indicates it leads to private property. There is no invitation in the words used on the sign for public to enter. In fact the contrary is conveyed. In my view, that type of private access route does not meet the intent of DC 1.1 because it does not adequately ensure that the public can access proposed Lot 2.
The applicant submits that the private access arrangement is not different than the provision of a driveway, which in turn accesses a pubic road. There is merit in this argument. However, in this case, the length of the private access route is such that it is something different to the concept of a driveway. The distance between the place where one enters the subject site in the area of proposed Lot 2 and the road, as well as the gate and the sign that are in place, mean that there would be significant practical difficulties in achieving access to the subject site for many elements of the public or any regulatory body that cannot use a regulatory power of access, both of would I accept are part of vehicular access contemplated by cl 3.7.1 of DC 1.1. The Tribunal is not satisfied that the proposed subdivision complies with cl 3.7.1 of DC 1.1 or its objectives in relation to the access for proposed Lot 2.
I turn to consider whether there is a reason to depart from DC 1.1 in the circumstances of this case. As indicated above, it is not immediately obvious how the local government was able to be satisfied that an access route to the development on the subject site by way of a significantly long cul-de-sac and by way of extensive private easement agreements was appropriate having regard to bushfire and having regard to DC 1.1. Nonetheless, the development and the access route were so approved. This factor, and the existence of a significant physical barrier that prevents vehicular access to this part of the subject site from the public road to which the subject site has frontage to a public road, would have provided a good reason to depart from policy in this case. The Tribunal would have allowed the proposed subdivision if this was the only issue before it in relation to the proposed subdivision.

Conclusion

The proposed subdivision is not consistent with all of the provisions of the Guidelines and in the circumstances of this case, there is no good reason to depart from policy. The correct and preferable decision is to affirm the decision of the respondent to refuse to approve the proposed subdivision.

Orders

The Tribunal orders:
1.The decision of the respondent made on 26 June 2018 to refuse to approve the application to subdivide Lot 2 Woodlands Road, Wilyabrup into three lots is affirmed.
2.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
25 JUNE 2019