Ironbridge Holdings Pty Ltd and Western Australian Planning Commission
[2008] WASAT 198
•28 AUGUST 2008
IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 198
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 198 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:391/2007 | 12 AUGUST 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 28/08/08 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Outline Development Plan approved subject to condition Subdivision plan approved subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | IRONBRIDGE HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Outline Development Plan Subdivision 43 residential lots in Exmouth adjacent to marina precinct Requirement for an Outline Development Plan Structure Plan requirement for a gradation of lot sizes Potential impact of marine industrial uses Required separation distances Effect of floodways and floodfringe Requirement for filling of site Whether need for comprehensive planning Road planning Distribution of public open space Continuity of foreshore reserve Availability of services Expansion of Exmouth harbour Whether seriously entertained planning proposal |
Legislation: | Planning and Development Act 2005 (WA), s 152, s 153 Shire of Exmouth Town Planning Scheme No 3, cl 5.2.1, cl 5.2.3 |
Case References: | Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 |
Orders | The Tribunal makes the following orders:,DR 299 of 2008,1. The application for review is allowed.,2. The decision of the respondent made on 22 July 2008 to refuse to endorse the ODP for Lot 11 and Lot 12 Market Street, Exmouth is set aside and in its place a decision is substituted on behalf of the respondent that the ODP prepared by Koltasz Smith and dated 4 July 2007 (Plan No 30504002c) is hereby approved with the following modification:,i) The setback line of the foreshore reserve shown on the ODP shall be amended to reflect that indicated on the plan of subdivision prepared by McMullen Nolan Drawing 94395-2 Revision E dated 12 May 2008.,DR 391 of 2007,1. The application for review is allowed.,2. The deemed refusal by the respondent of the application for the subdivision of Lot 11 and Lot 12 Market Street, Exmouth is set aside and a decision is substituted that the plan of subdivision prepared by McMullen Nolan Drawing 943952 Revision E dated 12 May 2008 is approved subject to the following conditions:,i) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to lots shown on the approved plan of subdivision. (Water Corporation),ii) Suitable arrangements being made with the Water Corporation so that provision of a suitable sewerage service will be available to lots shown on the approved plan of subdivision. (Water Corporation),iii) The provision of easements for existing or future water, sewerage and/or drainage infrastructure as may be required by the Water Corporation being granted free of cost to that body. (Water Corporation),iv) Arrangements being made to the satisfaction of the respondent and to the specification of Horizon Power for the provision of underground electricity supply service to the lot(s) shown on the approved plan of subdivision. (Horizon Power),v) The transfer of land as a Crown Reserve, free of cost to the Horizon Power Corporation, for the provision of electricity infrastructure. All costs associated with the registration of easements are to be borne by the applicant. (Horizon Power),vi) Arrangements being made to the satisfaction of Horizon Power for the provision of easements for Horizon Power existing or future equipment. All costs associated with the registration of easements are to be borne by the applicant. (Horizon Power),vii) Arrangements being made to the satisfaction of Horizon Power that financial and other requirements have been satisfied for the removal and relocation of Horizon Power plant or equipment located on or near the proposed subdivision. (Horizon Power),viii) All buildings, outbuildings and/or structures being demolished and materials removed from proposed Lot 11 and Lot 12 Market Street, Exmouth. (Local Government),ix) All septic sewer systems, including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems, are to be decommissioned, removed, filled with clean sand and compacted. Any decommissioning is to be in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). A licensed plumber is required to rectify that the new lot is clear of any septic tanks, leach drains and drainage infrastructure. (Local Government),x) Those lots not fronting an existing road being provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system and such road(s) being constructed and drained at the applicant/owner's cost. As an alternative, the Western Australian Planning Commission is prepared to accept the applicant/owner paying to the local government the cost of such road works as estimated by the local government, subject to the local government providing formal assurance to the Western Australian Planning Commission confirming that the works will be completed within a reasonable period as agreed by the Western Australian Planning Commission. (Local Government),xi) Street corners within the subdivision are to be truncated to the standard truncation of 8.5 metres. (Local Government),xii) The land is to be filled/drained at the subdivider's cost to the satisfaction of the respondent. Any easements and/or reserves necessary for the implementation of filling or draining are to be granted by the owner/subdivider free of cost. (Local Government),xiii) A foreshore reserve as established by survey, being shown on the Diagram or Plan of Survey (Deposited Plan) as a "Reserve for Recreation" and vested in the Crown under s 152 of the Planning and Development Act 2005 (WA) such land to be ceded free of cost and without any payment of compensation by the Crown. (Local Government),xiv) A cash-in-lieu payment equivalent to 3,169.4 square metres is granted in accordance with s 153 of the Planning and Development Act 2005 (WA). (Local Government),xv) A foreshore management plan is to be prepared and implemented at the applicant's cost, once approved by the Local Government. (Local Government),xvi) Uniform fencing 1.8 metres high is to be constructed along the western boundaries of proposed Lots 21, 40 and 59 and along the southern boundaries of proposed lots 59, 60, 61, 62, 63, 64 and 66. (Local Government),xvii) Any existing vehicular crossovers are to be removed and the verge reinstated to the specifications of the local government. (Local Government),xviii) Measures are being taken to ensure the identification and protections of any vegetation on the site worthy of retention prior to commencement of site works. (Local Government),xix) Land subject to future residential development to be filled to a level not less than 500mm above the 1:100 year ARI flood level. (Department of Water),xx) Prospective purchasers being advised that the land is situated within the Exmouth Central Groundwater Subarea, and that a groundwater licence is required before a well or bore can be constructed in accordance with the Rights in Water and Irrigation Act 1914 (WA). The groundwater resource readily accessible in the Exmouth Central Groundwater Sub-area is fully located and it is unlikely that any additional licences will be issued in the near future, and that the absence of this resource may affect the viability of some forms of development. (Department of Water),xxi) Prior to the commencement of site works, an integrated urban water management plan is to be prepared, to the satisfaction of the Department of Water. (Department of Water),xxii) The integrated urban water management plan is to be implemented as part of the subdivision works. (Department of Water) |
Summary | In March 2007 an application was lodged with the respondent for the subdivision of Lot 11 and Lot 12 Market Street, Exmouth into 46 (later reduced to 43) residential lots. When the respondent failed to determine the proposed subdivision, the applicant made an application to the Tribunal for review. An Outline Development Plan (ODP) for essentially the same proposal was also submitted to the Shire of Exmouth and the respondent for consideration. Following the commencement of the subdivision review proceedings, the ODP was considered by the respondent and refused. The applicant subsequently sought a review of this decision by the Tribunal.,In dealing with these reviews, the substantive issues were:,whether the ODP and the subdivision are consistent with the Exmouth Structure Plan set out in the Ningaloo coast regional strategy Carnarvon to Exmouth;,whether the ODP and the subdivision are appropriate having regard to possible amenity impacts arising from the potential development of marine industrial uses in the Exmouth Marina Village immediately to the north of the site or the potential expansion of Exmouth Harbour; and,whether the ODP and the subdivision would compromise the comprehensive planning of the surrounding area with reference to the provision of public open space, road connections, service infrastructure and, in particular, potential flooding.,The Tribunal decided to grant conditional approval to the ODP and the subdivision. The Tribunal determined that the recent availability of services to the proposed lots means that the proposal is consistent with the longterm residential contemplation for the site under the Structure Plan. The Tribunal considered that any impacts from marine industrial development to the north can be managed within acceptable levels. The Tribunal also found that the approval of the ODP and the subdivision would not prejudice the development of land to the south and that orderly and proper planning did not in this case require the comprehensive planning of the site with the surrounding area. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 198 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
- DR 299 of 2008
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Outline Development Plan - Subdivision - 43 residential lots in Exmouth adjacent to marina precinct - Requirement for an Outline Development Plan - Structure Plan requirement for a gradation of lot sizes - Potential impact of marine industrial uses - Required separation distances - Effect of floodways and floodfringe - Requirement for filling of site - Whether need for comprehensive planning - Road planning - Distribution of public open space -
(Page 2)
Continuity of foreshore reserve - Availability of services - Expansion of Exmouth harbour - Whether seriously entertained planning proposal
Legislation:
Planning and Development Act 2005 (WA), s 152, s 153
Shire of Exmouth Town Planning Scheme No 3, cl 5.2.1, cl 5.2.3
Result:
Outline Development Plan approved subject to condition
Subdivision plan approved subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr I Rogers
Respondent : Ms L Eddy
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
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Summary of Tribunal's decision
1 In March 2007 an application was lodged with the respondent for the subdivision of Lot 11 and Lot 12 Market Street, Exmouth into 46 (later reduced to 43) residential lots. When the respondent failed to determine the proposed subdivision, the applicant made an application to the Tribunal for review. An Outline Development Plan (ODP) for essentially the same proposal was also submitted to the Shire of Exmouth and the respondent for consideration. Following the commencement of the subdivision review proceedings, the ODP was considered by the respondent and refused. The applicant subsequently sought a review of this decision by the Tribunal.
2 In dealing with these reviews, the substantive issues were:
• whether the ODP and the subdivision are consistent with the Exmouth Structure Plan set out in the Ningaloo coast regional strategy Carnarvon to Exmouth;
• whether the ODP and the subdivision are appropriate having regard to possible amenity impacts arising from the potential development of marine industrial uses in the Exmouth Marina Village immediately to the north of the site or the potential expansion of Exmouth Harbour; and
• whether the ODP and the subdivision would compromise the comprehensive planning of the surrounding area with reference to the provision of public open space, road connections, service infrastructure and, in particular, potential flooding.
3 The Tribunal decided to grant conditional approval to the ODP and the subdivision. The Tribunal determined that the recent availability of services to the proposed lots means that the proposal is consistent with the longterm residential contemplation for the site under the Structure Plan. The Tribunal considered that any impacts from marine industrial development to the north can be managed within acceptable levels. The Tribunal also found that the approval of the ODP and the subdivision would not prejudice the development of land to the south and that orderly and proper planning did not in this case require the comprehensive planning of thesite with the surrounding area.
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Introduction
4 This decision addresses two related, albeit separate, applications for review. The first relates to a failure by the respondent to determine an application for subdivision of the subject land, while the second relates to a decision by the respondent to refuse to approve an Outline Development Plan (ODP) for the same land.
5 On 27 March 2007, the respondent received an application to amalgamate Lot 11 and Lot 12 Market Street, Exmouth and subdivide the amalgamated lot into 46 green title lots ranging in size from 506 square metres to 855 square metres. Access was to be provided by a road on the eastern side of the land running south from Market Street and two east/west culdesacs providing internal access within the subdivision.
6 Subsequent to this application an amended subdivision plan was lodged with the respondent on 27 July 2007. This plan replaced the two culdesacs included in the initial plan with a loop road to improve connectivity within the subdivision and with potential future development on land to the west. When the respondent failed to determine this application within the applicable statutory period, the applicant, on 13 November 2007, made an application to the Tribunal for review.
7 On 30 May 2008, a further plan (Subdivision F) was put forward by the applicant. This plan reduced the number of lots from 46 to 43 (representing an R20 density) ranging in size from 484 square metres to 697 square metres and provided for a future road connection to the south.
8 All of the proposed subdivision plans involved the ceding of areas of land along the eastern boundary, free of cost to the Crown, to be included in the foreshore reserve, and sought to address the requirement for public open space (POS) by way of a cash-inlieu contribution.
9 It is agreed between the parties that Subdivision F is the subdivision plan the subject of this review.
10 An ODP for Lot 11 and Lot 12 Market Street, Exmouth was initially submitted to the Shire of Exmouth (Shire) on 11 December 2006. This ODP was approved for advertising by the Shire subject to a number of minor modifications.
11 On 4 July 2007 an updated ODP was provided to the Shire. This updated ODP reflected the subdivision plan subsequently submitted to the respondent on 27 July 2007. The ODP was advertised by the Shire and no submissions
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- were received during the advertising period. On 10 August 2007 the Shire endorsed the updated ODP and forwarded it to the respondent for its approval. Following the commencement of the review proceedings in relation to the subdivision, the respondent considered and refused to approve the ODP. The applicant ultimately sought review of this decision as well, and the two review applications were heard concurrently.
Site and locality
12 The site comprises Lot 11 and Lot 12 Market Street, Exmouth. The area of Lot 11 is 2.7269 hectares and Lot 12 is 0.7708 hectare, establishing a total land area of 3.4977 hectares.
13 The site is located on the southern side of Market Street. To the east, the site is separated from the Exmouth Gulf by a coastal reserve. To the west, between the site and Murat Road, are three lots which, with the exception of two small structures, are undeveloped. To the north, across Market Street, is Precinct E of the Exmouth Marina Village; this land is intended for marine industrial uses which include fishing club, yacht club, sea rescue, boat maintenance and other environmentally acceptable maritime and light industrial uses. A marine research centre is currently proposed on the land immediately across Market Street opposite the western half of the site. To the south of the site is an area of Crown reserves, Crown leases and unallocated Crown land.
14 Access to the site is provided from Market Street which, approximately 350 metres to the west of the site, joins Murat Road. Murat Road runs northsouth and provides access to the existing town centre just over 3 kilometres to the north. Market Street also serves as the access road for the south eastern section of the Exmouth Marina Village.
Planning Framework
Town Planning Scheme No 3
15 The site is zoned 'Residential Development" in the Shire of ExmouthTown Planning Scheme No 3 (TPS 3).
16 The objectives established under cl 5.2.1 of TPS 3 for the "Residential Development" zone are:
(a) to provide for residential development for expansion of Exmouth.
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- (b) to provide for diversity of lifestyle choice with a range of residential densities.
(c) to achieve a high standard of residential development having regard to the economic importance of tourism to the town.
(d) to allow for the establishment of nonresidential uses which are compatible with the predominant residential use and which will not adversely affect local amenities.
(e) to promote development consistent with the planning objectives and recommendations of the ExmouthLearmonth (North West Cape) Structure Plan.
17 Clause 5.2.3 of TPS No 3 stipulates that the "Council shall require the preparation of an Outline Development Plan before granting and/or recommending approval to any development which involves subdivision" in the "Residential Development" zone.
The Ningaloo coast regional strategy Carnarvon to Exmouth
18 The Ningaloo coast regional strategy Carnarvon to Exmouth (strategy) was published in August 2004. The strategy represents a 30year strategic land use plan which sets the framework of planning for sustainable tourism and land use on the Ningaloo coast. Clause 2.2 of the strategy contains the Exmouth Structure Plan (structure plan). The structure plan is the outcome of a review of the structure plan detailed in the Exmouth-Learmonth (North West Cape) Structure Plan.
19 The site falls within the land use area designated in the structure plan as "special residential and longterm future urban" which encompasses all of the land to the south of the marina precinct bounded by Murat Road to the west, the coastal reserve to the east and the boundary of the Exmouth town site to the south. In dealing with the planning objectives for this area, the strategy states that "an outline development plan (ODP) should be prepared for the land south of the marina" and that "the ODP should allow for staged development of the area from an interim use of special residential to its proposed long-term residential use". The strategy also states that the ODP should provide for "a gradation of lot sizes from one hectare in the south to 2000 [square metres] for the land adjoining the marina subject to land capability, building envelope definition, service infrastructure and possible options for staged subdivision to its long-term residential use upon the availability of service infrastructure".
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The Exmouth Marina Village Outline Development Plan
20 The Exmouth Marina Village Outline Development Plan (Marina ODP) was prepared in July 2003 to facilitate the development of a marina village consisting of tourist, residential, commercial and maritime based industrial development around the existing boat harbour. The area of the marina to the immediate north of the site falls within Precinct E and is designated as "Marine Industrial". The permitted land uses for this area are established by the Exmouth Marina Village Broad Design Guidelines which identify "fishing club, yacht club, sea rescue, boat maintenance, and other environmentally acceptable maritime and light industrial uses".
21 The Marina ODP recognises the potential that some industries in the area could generate noise, odour or pollution impacts which could affect nearby residential or resort areas. It requires the Shire to "have due regard to the Commission's State Industrial Buffer Policy and the proximity of any proposals to nearby Residential and Future Urban zoned areas and other sensitive uses when considering development applications". The ODP states that wherever possible "industrial land uses should retain their emissions and hazards onsite or at least within the boundaries of the Light Marine Industry Area".
Exmouth Floodplain Management Study
22 The Exmouth Floodplain Management Study (Floodplain Study) completed in 2007 comprises a Flood Modelling Report and a Floodplain Management Strategy. The Floodplain Study is relevant in these reviews in that it maps floodway and flood zone affected land and establishes measures to mitigate flooding in the area.
23 In assessing the Flood Zoning Existing Case, the Floodplain Study designates the site as an "Area Under Further Consideration". In the Flood Zoning Developed Case, the site is not impacted by flooding. The developed case involves the implementation of three structural measures to manage flooding risks, namely the enhancement of the existing flood mitigation measures on the light industrial area creek, the replacement/upgrading of the Market Street bund and the replacement of existing causeways on Murat Road with bridges or culverts. These works have not been implemented to date.
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Issues for determination
24 It was agreed by the parties that the key issues for determination in this review are as follows:
1) Whether the proposed ODP and subdivision are inconsistent with the structure plan which requires that an OPD should be prepared for the land south of the marina.
2) Whether the proposed ODP and subdivision are inconsistent with the structure plan in relation to lot sizes.
3) Whether the proposed ODP and subdivision are appropriate having regard to any possible amenity impacts arising from likely future development of Precinct E of the Exmouth Marina Village or possible expansion of Exmouth Harbour.
4) Whether the proposed ODP and subdivision reflect appropriate comprehensive planning of the site in the context of the surrounding area with reference to the provision of POS, road connections, service infrastructure and, in particular, potential flooding.
25 The Tribunal will deal with each of these issues in turn.
Is the proposal inconsistent with the structure plan in relation to the requirement for an OPD for the land south of the marina?
26 The structure plan requires that an ODP be prepared for the land "south of the marina". It was agreed between the parties that the land "south of the marina" should be interpreted as encompassing all of the 17 existing lots in the area bounded by Market Street, the foreshore reserve, Murat Road and the southern boundary of the town site.
27 However, it is clear that the broad strategic objectives for the land south of the marina have been overtaken by the Floodplain Study. The outcomes of the Floodplain Study suggest that large parts of the land south of the marina fall within floodways and will not be capable of development for either the interim special residential or longterm residential uses envisaged by the structure plan. The study suggests that land should be set aside and designated as "floodways" and "floodfringe" to avoid impacts on existing floodplain residents and to maintain the existing function of the floodplain.
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28 While the Floodplain Study recommends that "Council should ultimately undertake land use planning over the entire investigation area to identify where future development may occur",it also specifically designates the land which is the subject of these reviews as an "Area Under Further Investigation". This designation appears to reflect the fact that the Department of Water (DOW), which commissioned the study, was involved in giving advice in relation to the subdivision of the site at the time when the Floodplain Study was being finalised. On 13 April 2007, in responding to the proposed subdivision, the DOW advised the Shire that:
As you are aware the Exmouth Management Study is still in progress … However, based on the work that has been currently done, filling of this land is considered acceptable and a ARI flood level of 4.60 [metres] AHD in this area will be satisfactory.
29 Furthermore, the Tribunal notes that, in June 2005, the respondent itself approved a subdivision creating five lots with areas of 652 square metres to 698 square metres on Lot 11 without requiring an ODP for the land south of the marina. The planning report recommending that approval referred to the requirement in the structure plan for an ODP for the land south of the marina, but said that:
The revised proposal will not create an undesirable precedent for further subdivision of land south of the Marina nor will it have an affect on the townsite expansion plan nor the proposed Local Planning Strategy.
30 In this context, the Tribunal finds that the approval of the ODP and subdivision will not prejudice the determination of which areas could be developed to the south of the subject land. In the context of the outcomes of the Floodplain Study, the lack of an ODP for the land south of the marina will not compromise the orderly and proper planning of this area in terms of the aspirations set out in the structure plan.
Is the proposal inconsistent with the structure plan in relation to lot sizes?
31 The structure plan requires that the ODP to be prepared for the land south of the marina should provide for a gradation of lot sizes from one hectare in the south to 2,000 square metres for the land adjoining the marina, and possible options for staged subdivision to long-term residential use upon the availability of service infrastructure.
32 The structure plan locates the subject land in the area identified for future residential development and clearly implies that the criterion for the transition to residential use is the "availability of service infrastructure".
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- In addition, the strategy establishes a minimum lot size prior to the availability of service infrastructure of 2,000 square metres for "special residential" use. Although not explicitly referred to in the structure plan, this coincides with the 2,000 square metre minimum lot size contemplated by the Water Corporation's Country Towns Sewerage - Subdivision Policy for unsewered lots referred to in cl 3.3.4 of the respondent's Development Control Policy No 2.2 - Residential Subdivision.
33 Significantly, reticulated sewer became available to the site after the structure plan was prepared when the marina was developed. When, in June 2005, the respondent approved the subdivision of Lot 11, which involved five comparably sized lots to the proposal, it imposed a standard reticulated sewerage condition requiring connections to the sewer.
34 The Tribunal therefore finds with regard to the site that the criterion established by the structure plan for the transition from "special residential" to longterm "residential" use has been satisfied by the provision of services and that it is no longer necessary to limit lots on the site to 2,000 square metres as would be the case for special residential, unsewered lots.
35 The proposal is not inconsistent with the structure plan in relation to lot sizes. The respondent did not raise any other concern in relation to the size of the proposed lots.
Is the proposal appropriate having regard to possible amenity impacts from marina development or expansion of the harbour?
36 The Marina ODP identifies Precinct E as "Marine Industrial" with permitted land uses of "fishing club, yacht club, sea rescue, boat maintenance, and other environmentally acceptable maritime and light industrial uses". The ODP requires the application of the respondent's State Industrial Buffer Policy (Policy).
37 Within the range of permitted uses established by the Marina ODP, it is likely that only boat maintenance or fuel storage would generate a requirement for the establishment of a buffer under the Policy. The Environmental Protection Authority (EPA) Guidance Statement Separation Distances between Industrial and Sensitive Land Uses (Guidance Statement) of 2005 now sets out the requirements for such generic separation distances.
38 Boat building and maintenance (maintaining or refurbishing) uses, where organotin compounds are used or removed from vessels, requires a generic buffer distance from "sensitive uses" of 500 - 1,000 metres depending on
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- size under the Guidance Statement. Fuel storage in tanks or vessels exceeding 2,000 tonnes capacity requires a generic buffer distance of 300 - 500 metres depending on the type of fuel stored and size of the tanks.
39 Mr Jason Bouwhuis and Mr Rodney Dixon, the expert planning witnesses, agreed that the Ningaloo Marine Research Centre is likely to be constructed on the land immediately across Market Street opposite the western half of the site. Relevantly, the EPA Guidance Statement includes offices and training centres within its designation of "sensitive uses". Consequently, any boat maintenance or fuel storage in Precinct E will need to be separated by the generic distance from the research centre, and hence by at least that distance from the site, unless a sound, sitespecific, technical analysis is carried out. Consequently, the proposal is acceptable having regard to marina development.
40 In addition to development within the marina, evidence was provided of a recent initiative by the Minister for Planning and Infrastructure to explore the potential expansion and development of Exmouth Harbour east into the Exmouth Gulf. The information included in an initial consultation process undertaken in June 2008 suggested possible expansion could include new breakwaters, wharves and associated infrastructure for users which could include offshore oil and gas industries, coastal shipping, charter vessel industry, super yachts and cruise ship companies. If this possible expansion of the harbour occurs, it would involve vehicular access along Market Street.
41 A report on the outcomes of the initial consultation has yet to be formally dealt with by the State Government. The proposal could raise substantial issues in terms of the potential impacts on existing and approved residential and tourist uses in the marina. The applicant also noted at the hearing that the Exmouth Learmonth (North West Cape) Structure Plan of 1998 had identified an alternative strategic coastal industrial area.
42 In terms of the considerations discussed by the Tribunal in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005)149 LGERA 117, the Tribunal considers that the proposal to expand the Exmouth Harbour does not, at this stage, constitute a seriouslyentertained planning proposal. Even if it were a seriouslyentertained planning proposal, the weight to be given to the proposal in assessing the applications before the Tribunal would be minimal, given the significant uncertainty about whether it will happen, its form and timing.
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- Therefore, even if the harbour expansion were a seriously-entertained planning proposal, it would not alter the result in this case.
Does the proposal reflect appropriate comprehensive planning?
43 The respondent suggested the need for comprehensive planning of the locality and argued that, in the absence of such planning, approval of the ODP and the subdivision would negatively impact on the ability for orderly and proper planning in the area to the south of Market Street as it would:
• restrict the ability to distribute a range of densities in accordance with the structure plan;
• result in ad hoc road planning and a lack of connectivity within the locality; and
• result in an ad hoc distribution of POS.
44 The gradation of lot sizes required by the structure plan clearly pertains to the interim use of "special residential", rather than to longterm residential use following the availability of services. In addition, the outcomes of the Floodplain Study will require a comprehensive reevaluation of development within the locality and this is, in any event, likely to throw into question the concept of a graduation of lot sizes in the area.
45 In regard to road planning in the broader area, the currently proposed subdivision has made provision for a connection to the south along the coastal reserve, should it be required. In addition, the revised road layout with the ring road access arrangement will provide flexibility in terms of potential road connection to the west, an area which the Floodplain Study identified as not subject to inundation under the "developed case".
46 In terms of the planning of open space in the locality, the parties agree that a cashinlieu payment is appropriate for POS rather than POS within the site. Public open space in those areas of the locality to the south which may be able to be developed are likely to be removed from the site. The Floodplain Study identified a substantive floodway immediately to the south of the site in the developed case. Thus, in this case, the general principle of locating POS centrally within an area of contiguous residential development does not apply. The parties agree that an area of the
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- eastern portion of the site should be vested in the Crown for incorporation in the foreshore reserve. This area of land could be incorporated into, and would be contiguous with, any future foreshore reserve established to the south.
47 The parties also agree that approval of the proposal would not prejudice the servicing of any land capable of development to the south.
48 No evidence was presented by the respondent that the proposed fill to be placed on the site to meet the requirements of the DOW would have a consequential impact on the planning of areas to the south.
49 In regard to comprehensive planning, the Tribunal therefore finds that the proposed ODP and subdivision do not prejudice the development of land to the south and that orderly and proper planning does not, in this case, require the comprehensive planning of thesite in the context of the surrounding area.
Conclusion
50 Given the outcomes of the Floodplain Study,which concluded that large parts of the land south of the marina are not capable of development as envisaged by the structure plan, the Tribunal has determined that the lack of an ODP for the land south of the marina would not compromise the orderly and proper planning of the area in terms of the aspirations set out in the structure plan.
51 In reviewing the requirement of the structure plan to establish a gradation of lot sizes, the Tribunal found that the criterion established by the structure plan for the transition from "special residential" to "residential" use has been satisfied by the provision of services, and the requirement for minimum 2,000 square metre lot sizes on the site is no longer relevant.
52 In regard to the potential amenity impacts arising from the likely future development of Precinct E of the Exmouth Marina Village, the Tribunal found that adequate buffer distances will be provided within the marina area because of the development of a research centre across the road from the site. In addition, the Tribunal determined that the proposal to expand Exmouth Harbour does not, at this stage, constitute a seriouslyentertained planning proposal.
53 Finally, in regard to comprehensive planning, the Tribunal found that the ODP and subdivision do not prejudice the development of land to the south and that, in this case, orderly and proper planning do not require the
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- comprehensive planning of thesite in the context of the surrounding area.
54 For these reasons the Tribunal has concluded that the proposed ODP and subdivision for Lot 11 and Lot 12, Market Street, Exmouth should be approved subject to conditions. With regard to the foreshore reserve, to the extent that the ODP shows a different setback to that shown in Subdivision F, the approved ODP should be conditioned to require adherence to the subdivision foreshore setback. The "without prejudice" draft conditions suggested by the respondent in regard to the subdivision of Lot 11 and Lot 12 are acceptable to the applicant and should be imposed.
Orders
55 The Tribunal makes the following orders:
DR 299 of 2008
1. The application for review is allowed.
2. The decision of the respondent made on 22 July 2008 to refuse to endorse the ODP for Lot 11 and Lot 12 Market Street, Exmouth is set aside and in its place a decision is substituted on behalf of the respondent that the ODP prepared by Koltasz Smith and dated 4 July 2007 (Plan No 30504002c) is hereby approved with the following modification:
i) The setback line of the foreshore reserve shown on the ODP shall be amended to reflect that indicated on the plan of subdivision prepared by McMullen Nolan Drawing 94395-2 Revision E dated 12 May 2008.
1. The application for review is allowed.
2. The deemed refusal by the respondent of the application for the subdivision of Lot 11 and Lot 12 Market Street, Exmouth is set aside and a decision is substituted that the plan of subdivision prepared by McMullen Nolan Drawing 943952 Revision E dated 12 May 2008 is approved subject to the following conditions:
- i) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to lots shown on the approved plan of subdivision. (Water Corporation)
ii) Suitable arrangements being made with the Water Corporation so that provision of a suitable sewerage service will be available to lots shown on the approved plan of subdivision. (Water Corporation)
iii) The provision of easements for existing or future water, sewerage and/or drainage infrastructure as may be required by the Water Corporation being granted free of cost to that body. (Water Corporation)
iv) Arrangements being made to the satisfaction of the respondent and to the specification of Horizon Power for the provision of underground electricity supply service to the lot(s) shown on the approved plan of subdivision. (Horizon Power)
v) The transfer of land as a Crown Reserve, free of cost to the Horizon Power Corporation, for the provision of electricity infrastructure. All costs associated with the registration of easements are to be borne by the applicant. (Horizon Power)
vi) Arrangements being made to the satisfaction of Horizon Power for the provision of easements for Horizon Power existing or future equipment. All costs associated with the registration of easements are to be borne by the applicant. (Horizon Power)
vii) Arrangements being made to the satisfaction of Horizon Power that financial and other requirements have been satisfied for the removal and relocation of Horizon Power plant or equipment located on or near the proposed subdivision. (Horizon Power)
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- viii) All buildings, outbuildings and/or structures being demolished and materials removed from proposed Lot 11 and Lot 12 Market Street, Exmouth. (Local Government)
ix) All septic sewer systems, including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems, are to be decommissioned, removed, filled with clean sand and compacted. Any decommissioning is to be in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). A licensed plumber is required to rectify that the new lot is clear of any septic tanks, leach drains and drainage infrastructure. (Local Government)
x) Those lots not fronting an existing road being provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system and such road(s) being constructed and drained at the applicant/owner's cost. As an alternative, the Western Australian Planning Commission is prepared to accept the applicant/owner paying to the local government the cost of such road works as estimated by the local government, subject to the local government providing formal assurance to the Western Australian Planning Commission confirming that the works will be completed within a reasonable period as agreed by the Western Australian Planning Commission. (Local Government)
xi) Street corners within the subdivision are to be truncated to the standard truncation of 8.5 metres. (Local Government)
xii) The land is to be filled/drained at the subdivider's cost to the satisfaction of the respondent. Any easements and/or reserves necessary for the implementation of filling or draining are to be granted by the owner/subdivider free of cost. (Local Government)
- xiii) A foreshore reserve as established by survey, being shown on the Diagram or Plan of Survey (Deposited Plan) as a "Reserve for Recreation" and vested in the Crown under s 152 of the Planning and Development Act 2005 (WA) such land to be ceded free of cost and without any payment of compensation by the Crown. (Local Government)
xiv) A cash-in-lieu payment equivalent to 3,169.4 square metres is granted in accordance with s 153 of the Planning and Development Act 2005 (WA). (Local Government)
xv) A foreshore management plan is to be prepared and implemented at the applicant's cost, once approved by the Local Government. (Local Government)
xvi) Uniform fencing 1.8 metres high is to be constructed along the western boundaries of proposed Lots 21, 40 and 59 and along the southern boundaries of proposed lots 59, 60, 61, 62, 63, 64 and 66. (Local Government)
xvii) Any existing vehicular crossovers are to be removed and the verge reinstated to the specifications of the local government. (Local Government)
xviii) Measures are being taken to ensure the identification and protections of any vegetation on the site worthy of retention prior to commencement of site works. (Local Government)
xix) Land subject to future residential development to be filled to a level not less than 500mm above the 1:100 year ARI flood level. (Department of Water)
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- xx) Prospective purchasers being advised that the land is situated within the Exmouth Central Groundwater Subarea, and that a groundwater licence is required before a well or bore can be constructed in accordance with the Rights in Water and Irrigation Act 1914 (WA). The groundwater resource readily accessible in the Exmouth Central Groundwater Sub-area is fully located and it is unlikely that any additional licences will be issued in the near future, and that the absence of this resource may affect the viability of some forms of development. (Department of Water)
xxi) Prior to the commencement of site works, an integrated urban water management plan is to be prepared, to the satisfaction of the Department of Water. (Department of Water)
xxii) The integrated urban water management plan is to be implemented as part of the subdivision works. (Department of Water)
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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