HUTCHINGS and SHIRE OF AUGUSTA MARGARET RIVER
[2023] WASAT 96
•9 OCTOBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HUTCHINGS and SHIRE OF AUGUSTA MARGARET RIVER [2023] WASAT 96
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 18 SEPTEMBER 2023
DELIVERED : 9 OCTOBER 2023
FILE NO/S: DR 7 of 2023
BETWEEN: BRIAN TERRY HUTCHINGS
Applicant
AND
SHIRE OF AUGUSTA MARGARET RIVER
Respondent
Catchwords:
Town planning – Development application – Environmental considerations as planning considerations – Clearing of native vegetation
Legislation:
Biodiversity Conservation Act 2018 (WA)
Environmental Protection Act 1986 (WA), Sch 5, cl 1, s 20, s 51E(1), s 51O(4)
Environment Protection Biodiversity Conservation Act 1999 (Cth)
Planning and Development Act 2005 (WA), s 3(1)(c)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 60
Shire of Augusta Margaret River Local Planning Scheme No 1, cl 4.2.2.1, cl 4.2.2.1(f), cl 5.20.1, cl 5.20.1(b)
Shire of Augusta Margaret River Local Planning Strategy 2036
Result:
Application for review dismissed.
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr M Cuthbert |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Cases referred to in decision(s):
Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150
Clive Elliot Jennings Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; 122 LGERA 433; 122 LGRA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; 72 LGRA 414
Squarcini and Milino Pty Ltd v State Planning Commission (unreported SCt of WA (Scott J); Library No 960200; 17 April 1996
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Brian Terry Hutchings (Applicant) seeks review of a decision of the Shire of Augusta Margaret River (Shire or Respondent) to refuse his application to remove 97 peppermint trees (Proposal) on his land at 453 Burnside Road, Burnside (Subject Land). The Proposal would allow the Applicant to run more cattle on the Subject Land as the large canopy of the mature peppermint trees inhibit pasture growth.
The Shire is opposed to the Proposal on the basis that it would result in the loss of native vegetation which, it submits, would be contrary to the requirements of the Shire of Augusta Margaret River Local Planning Scheme No 1 (LPS 1). Furthermore, the Applicant has not prepared a fauna survey to ascertain if the peppermint trees are habitat for the endangered Western Ringtail Possum (Ngwayir) (Pseudocheirus occidentalis). The Shire is also concerned about the impact of the clearing on the landscape of the locality.
For the following reasons, the correct and preferable decision is to affirm the Respondent's decision to refuse the Proposal. The review should be dismissed.
Background
The Subject Land
The Subject Land:
(a)is formally known as Lot 883, Burnside Road, Burnside and has an area of 64.7 ha;
(b)is located 800 metres north-east of the intersection of Burnside and Carters Roads and approximately 4.5 kilometres south-west of the intersection of Burnside Road and Bussell Highway;
(c)divides into three distinct moieties, as follows:
(i)on the western side, it is pastured, consisting of scattered paddock trees, a vegetated watercourse and a dwelling located close to Burnside Road. The Proposal involves clearing within this western portion;
(ii)centrally located are stands of remnant vegetation which is fenced from the paddocks to the west. This area is subject to a voluntary conservation covenant; and
(iii)to the east, contains some matured pasture areas with stands of remnant vegetation. A further dwelling is located in this area. This area is accessed via the Subject Land's northern boundary.
Applicable planning framework
The Subject Land is zoned 'Priority Agriculture' under LPS 1. The zoning objectives include, relevantly:
(a)To provide for a strong sustainable agricultural industry that is sufficiently flexible in response to changing industry circumstances by protecting the long term availability of suitable land for a diverse range of agricultural purposes.
…
(e)To minimise the clearing of land.
(f) To ensure that areas of indigenous vegetation are carefully evaluated before any clearing proposals are approved and to encourage the provision of replacement plantings of native vegetation to maintain and preferably enhance the Shire's biodiversity and landscape values.[1]
…
[1] LPS 1, cl 4.2.2.1.
The Proposal involves the clearing of 97 mature peppermint trees (Agonis flexuosa) located on the western portion of the Subject Land. The extent of clearing is not agreed between the parties. In any event, it will involve clearing between 1 and 2 ha. However, the parties do agree that the Proposal involves the felling of 97 peppermint trees.
The use of the Subject Land for grazing is classified as 'extensive agriculture' for the purposes of LPS 1. Extensive agriculture is a 'permitted' use in the Priority Agriculture zone. However, the Proposal to clear trees constitutes 'works' for the purposes of cl 60 of the deemed provisions,[2] and thus, prima facie, approval is required. Furthermore, the term 'land clearing' is defined in LPS 1 to mean:
… any one or more of the following:
(a) cutting down, felling, thinning, logging or removing vegetation;
(b) killing, destroying, poisoning, ringbarking, uprooting or burning vegetation; or
(c) severing, branches, limbs, stems or trunks of vegetation[.]
[2] The deemed provisions being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
Clause 5.20.1 provides that all land clearing requires the prior approval of the local government unless the clearing is exempt. Clause 5.20.1 then sets out 13 exemptions from the need to obtain approval, none of which apply to the Proposal.
Clause 5.20.1(b) states:
The local government will, when presented with an application to clear land or an application to develop the land pursuant to the Scheme, have regard to the extent of clearing to be undertaken, the quality and type of vegetation to be removed and any re-vegetation carried out on the same land. The local government may impose conditions or make arrangements to retain some of the vegetation on the land, or refuse the application if the removal of the vegetation, in the opinion of the local government, would result in a deleterious environmental, amenity or landscape impact.
Therefore, it is not controversial that the Proposal requires development approval under LPS 1.
The Shire refused the Proposal on 22 December 2022 on the basis that inter alia it was inconsistent with the zoning objectives and would adversely impact the environment. Furthermore, the Proposal to clear vegetation was contrary to the Shire's Local Planning Strategy 2036 (LP Strategy).
The LP Strategy was endorsed by the Western Australian Planning Commission on 18 January 2022. The LP Strategy states:
The planning system plays a key role in the preservation of our natural environment, particularly with respect to private landholdings. State government approval is required for larger-scale clearing proposals and comes with obvious environmental consequences. The incremental impacts of land clearing at a smaller-scale through bush fire risk mitigation, facilitating new development or agricultural pursuits, can be equally destructive when considered on a cumulative basis. Protection mechanisms in the LPS and Planning Scheme are the most effective way of dealing with the cumulative effects of piecemeal clearing, where balanced against the reasonable use of residential properties and bushfire risk mitigation requirements.
In the past, the Shire has utilised available scientific data to inform decision making so as to avoid impacts on poorly represented flora and habitat for threatened species. Whilst appropriate for the time, the cumulative impact of the removal of vegetation has resulted in a need to minimise clearing of any kind in the future. It will be necessary at times to balance competing economic, social, cultural and environmental factors when considering development proposals that require clearing; however, such decisions will be informed by the Shire's 'environment first' policy, which acknowledges that our society and economy is intrinsically reliant on maintaining the health of the natural environment.
At ER5ii, the LP Strategy states that the planning response is to 'include scheme provisions that reference the Environmental Assets Map (EAM) and instil a strong presumption against clearing remnant vegetation'. The LP Strategy also states that even where a 'rural' zoning is in place, it should not be construed to be support for clearing of substantially vegetated lots for the purposes of agriculture'.[3]
[3] LP Strategy, page 36.
The LP Strategy includes an EAM[4] which identifies the Subject Land as containing the following assets:
[4] LP Strategy, page 31.
Habitat of threatened species:
·Baudin Cockatoo;
·Western Ringtail Possum,
·Carnaby Cockatoo (Breeding Area);
Areas inclusive of 'nested' features:
·Waterways
·Vegetation remnants.
Historical uses and approvals
The western portion of the Subject Land has historically been, and is currently, used for grazing. Currently 90 stock are run on the Subject Land.
Approval was granted for an extractive industry on the Subject Land on 23 February 1994. That use has now expired and the 4 ha of land that was cleared has since been rehabilitated. In 2017, approval was granted to clear approximately 1 ha of vegetation in the north-west of the pastured area as well as some isolated trees. The clearing was justified as it would provide areas for hay production to support grazing on the Subject Land.
Environmental considerations
Peppermint trees are known habitat for the critically endangered Western Ringtail Possum. The Western Ringtail Possum is arboreal, spending much of its time in the canopy of peppermint woodlands and eucalypt forests.
The Western Ringtail Possum is listed as 'critically endangered' under the Environment Protection Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Biodiversity Conservation Act 2018 (WA). It is also listed as critically endangered on the International Union for Conservation's Red List of Threatened Species.
The peppermint trees proposed to be cleared also buffer and provide protection to a number of large marri (Corymbia calophylla) and jarrah (Eucalyptus marginata) on the Subject Land. Marri and jarrah trees provide potential habitat for the endangered Carnaby's cockatoo (Ngoolark or Gnoomglark) (Calyptorhynchus latirostris), Baudin's cockatoo (Calyptorhynchus Baudinii) and the vulnerable Forest Red-tailed black cockatoo (Calyptorhynchus banksii naso).
Issue for determination
There is ultimately one issue that I must determine, being whether to approve the Proposal in the exercise of discretion. That necessarily involves evaluation of the Proposal in the context of the applicable planning framework.
Overview of Respondent's case
In broad terms, the Respondent's case is that the Proposal constitutes 'land clearing' for the purposes of LPS 1.
The Respondent submits that the Proposal does not meet the objectives of the Priority Agriculture zone which includes the objective of minimising land clearing. The Proposal cannot achieve the objective of the Priority Agriculture zone of ensuring 'that areas of indigenous vegetation are carefully evaluated before any clearing proposals are approved' because the Applicant has refused to provide sufficient information, in the form of a flora/fauna survey, to determine the value of the peppermint trees in terms of its habitat function.
The Respondent considers that refusal of the Proposal is consistent with cl 5.20.1(b) of LPS 1 which provides that the Respondent, and the Tribunal on review, may 'refuse the application if the removal of the vegetation, in the opinion of the local government, would result in a deleterious environmental, amenity or landscape impact'.
The Respondent further submits that one of the primary threats to the Western Ringtail Possum is habitat destruction and fragmentation. In this instance, the Applicant has declined to provide a fauna survey to determine if Western Ringtail Possums are present in the area of the Proposal.
The Respondent called two witnesses. Mr Matt Slocomb is the Coordinator of Planning Services at the Shire. Ms Katie Biggs is a Sustainability Planning Officer at the Shire.
Overview of Applicant's case
The Applicant's case is, in effect, the Subject Land is zoned Priority Agriculture; it is not zoned 'Native Fauna Habitat' nor 'Native Vegetation'. The Subject Land has been farmed for pasture since it was cleared.
The area proposed to be cleared is less than 1.5% of the area of the Subject Land. 41.7% of the Subject Land is virgin native vegetation comprising a mix of jarrah, marri and peppermint trees which provide habitat for local fauna.
The Applicant also refers to, and relies on, what is said to be an in‑principle agreement with the Department of Water and Environment Regulation (DWER) to allow the clearing of the 97 peppermint trees.
In its letter dated 22 December 2022, DWER attaches an in-principle agreement for a clearing permit for the purposes of s 51E(1) of the Environmental Protection Act 1986 (WA) (EP Act) which includes a requirement for the Applicant to plant 97 peppermint trees on the Subject Land, but east of where the existing peppermint trees the subject of the Proposal are located.
DWER's letter explains that it has undertaken a preliminary assessment only, based on the clearing principles set out in cl 1 of Sch 5 to the EP Act.
DWER also explains that it has had regard for 'the necessity for [the Applicant] to obtain planning approval from [the Shire] prior to clearing for the purposes of grazing and pasture'. Pursuant to s 51O(4) of the EP Act, that regard shall have regard to 'any development approval, planning instrument, or other matter, that the CEO[5] considers relevant'. As a result, a final determination 'will be deferred until a copy of the relevant planning approval has been provided to [DWER]'.
[5] Pursuant to s 20 of the EP Act, the CEO may, by notice, delegate all or any of the powers and duties of the CEO.
The Applicant's case is, in effect, that the Shire is requesting he undertake an expensive fauna survey to identify if the Western Ringtail Possum in circumstances where it is unnecessary. The Applicant submits that survey is unnecessary because, under the in-principle draft clearing permit, he would be required to engage a fauna specialist to relocate any Western Ringtail Possums that may be found when the peppermint trees are being felled.
Accordingly, the Applicant submits the Proposal warrants approval.
Disposition
Environmental issues as planning considerations
I start by observing that, notwithstanding the definition of 'works' in the deemed provisions, planning law has long recognised that the clearing of vegetation may well be development that requires approval. That was recognised by the Supreme Court in Palos Verdes Estates Pty Ltd v Carbon.[6]
[6] Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; 72 LGRA 414 [241] (Malcom CJ).
Planning law has also long recognised that environmental concerns are relevant planning considerations.[7] Of course, more recently, and since its commencement, the purpose of the Planning and Development Act 2005 (WA) (PD Act), is to 'promote the sustainable use and development of land in the State'. It is beyond argument that environmental considerations are now, quite properly, core planning considerations, including proposals to clear native vegetation.
Clearing of native vegetation
[7] Squarcini and Milino Pty Ltd v State Planning Commission (unreported SCt of WA (Scott J); Library No 960200; 17 April 1996.
Having heard the evidence of this matter, it is apparent that the Shire has taken a particularly hard-line with proposals that involve the removal of native vegetation within the Scheme area. At some level, the Shire's approach is understandable, perhaps even needed. As Mr Cuthbert, agent for the Shire, explained:
…
But the way that we see it and what our council has done very deliberately is to want to preserve as much vegetation as we possibly can throughout our shire, and that's because historically there has been a lot of land clearing that has happened and we see that our future, both in terms of the future of our environment but also in the future of our economy in terms of the reason that people come to visit us here, our tourism industry, and thinking ahead to more sustainable forms of agriculture depends on it.
And so we see that – and we understand this is – you know, to you this is an important undertaking that you want to do, but we must – it's our – part of our role, look at things more broadly, and that's why our council has designed for us to implement policies which try to reduce, minimise the amount of clearing that occurs throughout our shire.
I understand that the property is zoned for primary agricultural purposes, but that's exactly how it's being used at present and we would say that the harmonious sort of use of the property for grazing at the same time as retaining those trees is exactly how we would encourage Mr Hutchings to use it, and we would encourage any people that own rural properties to use their property, you know, dually being an income source undertaking agriculture but also retaining the vegetation on site.[8]
…
[8] ts 18, 18 September 2023.
At the heart of this case is what may properly be labelled a modest proposal to clear native vegetation as part of a commercial farming operation on land zoned for such uses. However, the overarching point that the Shire makes, is that, in its view, gone are the days when it can be assumed that the removal of native vegetation, even in the context of modest proposals, can be considered 'sustainable' in both environmental and economic terms.
It is also the case that proposals that involve clearing of native vegetation are inherently difficult. This is especially so on privately owned land in circumstances, such as here, where the landowner uses their land to derive their income.
Coming back to the point made by the Shire about the sustainability of the further removal of native vegetation in some bioregions, I do agree that this is a challenge that governments at all levels must grapple with.
It is axiomatic that the incremental and ad hoc loss of native vegetation is an issue which requires urgent attention by those that administer planning and environmental laws in Western Australia. That is particularly so in the south-west which is the Australia's sole global biodiversity hotspot. It hardly needs to be stated that humankind shares a symbiotic relationship with the natural environment.
In terms of evaluating planning outcomes, I would also observe that it is entirely plausible that a series of individual decisions to allow native vegetation to be removed, each of which is considered rational and justifiable in its own terms, can produce an overall suboptimal outcome. So much was astutely made clear in William Forster Lloyd's 1833 pamphlet on the depletion of common resources (which native vegetation plainly is). Lloyd's insights later formed the basis of biologist Garrett Hardin's 1968 article 'The Tragedy of the Commons',[9] which continues to shape both economic and ecological theories.
[9] Hardin G (1968) The Tragedy of the Commons, Science, Vol 162 (3859), 1968.
A parcel-by-parcel, as opposed to a more holistic, approach to land use planning invites serious environmental consequences once the cumulative impact becomes apparent.
The exercise of planning discretion
Nevertheless, despite my comments above, environmental concerns are not the only concerns that arise in the context of land use planning. Land use planning has always been about balancing different, often competing, interests. Indeed, the very essence of a sustainable land use planning system, which is the lodestar established by s 3(1)(c) of the PD Act, involves a balancing of environmental, economic and social considerations.
It is also the case that the Subject Land is private land zoned for priority agricultural purposes. The objectives of the zone include '[providing] for a strong sustainable agricultural industry'. That is not without significance.
As I listened to the evidence of Mr Slocomb and, in particular, Ms Biggs, it was apparent that there is no real prospect that they would support the Proposal under any circumstance. I am satisfied that each of these witnesses are opposed, in principle, to the further clearing of native vegetation within the Shire. Therefore, I understand the reluctance of the Applicant to prepare a fauna survey as it would be unlikely to shift the Shire's position.
The Shire submits its firm position derives from the LP Strategy which takes an 'environment first' policy to the question of clearing. That philosophy is also embedded within LPS 1, even in the context of the Priority Agriculture zone, which includes objectives to minimise the clearing of land and also to ensure that areas of indigenous vegetation are carefully evaluated before any clearing proposals are approved.
At some level, the Shire's 'environment first' approach to the clearing of vegetation is justified. As I have stressed above, the manner by which land use planning approaches proposals to clear native vegetation on parcel-by-parcel basis, without appropriate regard to cumulative consequences, risks being labelled as little more than managed environmental decline. At some point, managed environmental decline ultimately becomes irreversible environmental damage.
For example, in this instance, research undertaken in 2015 suggests that there is a 92% likelihood that the Western Ringtail Possum will be extinct within 20 years if action is not taken to protect populations and habitat.[10] For any Western Australian, that prospect should be somewhat sobering.
[10] Exhibit 1, para 40.
Nevertheless, with respect to the Shire, the LP Strategy and the objects of LPS 1 are considerations which inform, but cannot dictate, land use planning outcomes. Regard must always be had to the merits of the proposal in question. So much was made clear by the Supreme Court in Falc Pty Ltd v State Planning Commission.[11] Although, as was later explained by Barker J in Clive Elliot Jennings Pty Ltd v Western Australian Planning Commission,[12] while policy instruments cannot be applied inflexibly, in many instances the question will be why the principles which find expression in the policy are not relevant, or should not be applied, to the application in question.
[11] Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 (Pidgeon, Nicholson and Ipp JJ).
[12] Clive Elliot Jennings Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; 122 LGERA 433; 122 LGRA 433 at [24].
Despite the Shire's strong planning framework on protecting the environment, as I indicated at the final hearing, the Subject Land is, after all, zoned and used for priority agricultural uses. That must be, and is in my view, relevant in evaluating the merits of the Proposal.
Having considered the Respondent's submissions and the evidence of Mr Slocomb and Ms Biggs, I would caution the Shire that it cannot approach discretionary decision-making with a closed mind that it will not allow the removal of native vegetation under any circumstance. The Shire is of course, entitled to take a strong 'environment first' approach, but each proposal must still be evaluated on its merits in the light of that applicable planning framework.
The Proposal should be refused in the exercise of discretion
In this instance, I find that the Proposal may have some merit, at least in part. There appears to be some peppermint trees, or stands of trees, that are isolated from the core vegetated areas of the Subject Land and which may be appropriate to be removed.
On the other hand, there are also other stands of peppermint trees that appear to form part of the core vegetated area of the Subject Land, notwithstanding they are separated by a historic fence line. As things stand, I would have more difficulty in allowing these trees to be felled.
However, even after hearing this matter, I am in no position to ascertain whether any or all of the peppermint trees in question have been, are being, or might be, habituated by Western Ringtail Possums.
And that is precisely the point.
While there is no onus in review proceedings, the Applicant has not produced any information to satisfy me that, at the very least, the peppermint trees proposed to be cleared are not home to a population of Western Ringtail Possums. In the context of this case, in my view, that is an absolute baseline consideration that must be addressed before any serious contemplation is given to whether the trees, or at least some of them, can be removed. The Applicant's refusal to produce this fauna study, the production of which is contemplated by LPS 1, leaves me, I find, with few options in a practical sense.
I have given the object of first carefully evaluating areas proposed to be cleared, which emanates from LPS 1,[13] the most weight in this proceeding. Such an approach is not only environmentally responsible, but also accords with the purpose of the PD Act to promote the sustainable and development of land. Planning decisions which leave unanswered questions as to whether there may be serious environmental consequences arising from their implementation, are simply not consistent with the principles of orderly and proper planning.
[13] LPS 1, cl 4.2.2.1(f).
Furthermore, while I accept that, at some level, it would appear that DWER appears to have reached an in-principle agreement with the Applicant, it is apparent that DWER are actually awaiting the outcome of the Proposal before considering the matter further. DWER's position is not, of itself, an endorsement that the Proposal is environmentally acceptable. If that were the case, DWER could issue the clearing permit now. Furthermore, it would appear that DWER has not yet even attended the Subject Land.[14] I therefore disagree that with the Applicant that DWER has, in effect, signed-off on the environmental merits of the Proposal.
[14] ts 12, 18 September 2023.
To that I would add, in any event, the requirements which inform the issuing of clearing permits under the EP Act apply in addition to, not in substitution of, the requirements of local planning schemes made under the PD Act. It is also the case that I am not bound by any position that is reached by DWER under the EP Act.[15]
[15] Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150 [66].
LPS 1 makes it clear that the clearing of native vegetation should only be approved only following a careful evaluation of the vegetation to be removed. As I have explained, in the context of peppermint trees in the south‑west, having regard to the continued plight of the Western Ringtail Possum, that policy position appears to be sensible and reasonable.
I should also say that while the Shire did agitate the issue of protecting the rural landscape as a further reason that warrants refusal of the Proposal, I do not agree. The trees in question are not close to Burnside Road nor are they highly visible. In any event, pastured lands form part of the landscape in this locality.
Based on the evidence before me, I am not satisfied that the Proposal is consistent with the applicable planning framework, namely the LP Strategy and LPS 1. In my view, and in the exercise of discretion, the correct and preferable decision is to affirm the Respondent's decision.
Therefore, the application for review is dismissed.
Orders
The Tribunal orders:
1.The decision of the Respondent is affirmed.
2.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
9 OCTOBER 2023
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