JURAN and CITY OF ARMADALE
[2018] WASAT 49
•21 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JURAN and CITY OF ARMADALE [2018] WASAT 49
MEMBER: MS L EDDY (MEMBER)
HEARD: 20 AND 21 March 2018
DELIVERED : 21 JUNE 2018
FILE NO/S: DR 187 of 2017
BETWEEN: ANAT JURAN
Applicant
AND
CITY OF ARMADALE
Respondent
Catchwords:
Town Planning - Development application - Change of use from private swimming pool to hydrotherapy consulting - State Planning Policy 3.7: Planning in Bushfire Prone Areas - Whether minor development - Impact on amenity - Turns on own facts
Legislation:
City of Armadale Town Planning Scheme No 4 (WA), cl 1.6, cl 3.2.3, cl 3.3.2, Table 1
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 64, cl 67
State Administrative Tribunal Rules 2005 (WA)
Result:
The decision of respondent is affirmed
The application for review is otherwise dismissed
Summary of Tribunal's decision:
The applicant applied for development approval to use an existing private swimming pool building for the purpose of a consulting room (hydrotherapy). The site on which the development was to occur was located on a cul-de-sac road in Roleystone. The site was zoned 'Rural Living' and the proposed use of the swimming pool building for the purposes of a consulting room was a use that is not permitted unless the local government has exercised its discretion by granting development approval after giving special notice in accordance with the City of Armadale Town Planning Scheme No 4. The respondent refused to grant approval for the proposed development and the applicant sought review of that decision in the Tribunal.
The Tribunal determined that the proposed development did not comply with State Planning Policy 3.7: Planning in Bushfire Prone Areas and the related Guidelines for Planning in Bushfire Prone Areas. In the circumstances of this case, where the site is located in an area of extreme bushfire hazard, the proposed development does not comply with SPP 3.7, and the existing building was not built to a standard capable of providing a safe haven in the event of a bushfire, the Tribunal found that it would be inappropriate to approve the proposed development.
The Tribunal also determined that the road on which the site was located was a relatively quiet road with very low existing vehicle traffic volumes. Although the increase in traffic volumes was not, in terms of numbers of vehicle trips, a very large number, the increase was a significant one in comparison to the existing situation. The Tribunal was satisfied that the proposed development would have an unacceptable impact on the amenity of the locality.
For these two reasons, the Tribunal determined that the correct and preferable decision in this matter was to affirm the decision of the respondent to refuse to approve the proposed development.
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Foley |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Puma Energy Australia and City of Cockburn [2016] WASAT 36
REASONS FOR THE DECISION OF THE TRIBUNAL:
Introduction
Anat Juran (applicant) is the owner of No 43 (Lot 20) Butcher Road, Roleystone (site). The site is currently used for residential purposes and contains, amongst other things, a residential dwelling and a separate structure that is used as a private swimming pool.
In November 2016, the applicant lodged an application with the City of Armadale (City or respondent) seeking development approval to use the private swimming pool building for the purpose of 'consulting room (hydrotherapy)'. The proposed change of use was publicly advertised and 72 public submissions were received, 15 of which objected to the proposal.
The respondent's planning officer recommended conditional approval of the proposed change of use of the site, however, at its meeting on 8 May 2017 the respondent's council refused to approve the proposed development. Notice of the respondent's decision was provided to the to the applicant's planning consultant under cover of letter dated 10 May 2017. On 6 June 2017, within the time allowed by the State Administrative Tribunal Rules 2005 (WA) to make such an application, the applicant lodged an application for review of the respondent's decision in the Tribunal.
During the course of the Tribunal proceedings, the respondent was invited to reconsider an amended application that proposed the use of the existing swimming pool building for 'consulting room (hydrotherapy)' use. The amended proposal reduced the operating hours and the number of clients to be received in the course of the proposed change of use. Again, the respondent's planning officer recommended conditional approval of the proposed development. However, the respondent's council resolved to refuse to approve the proposed development for the following reasons:
1.The proposed land use is not considered to be consistent with the intent and objectives of the 'Rural Living Zone' of the Town Planning Scheme No.4 Clause 4.2.3(b) and (c) which aim:
b)To provide for a range of associated compatible development, consistent with the environmental opportunities and constraints applicable to individual sites.
c)To ensure development is sited, designed and managed in harmony with the natural environment and so as to protect the rural landscape and amenity.
2.The proposed use is inconsistent was Schedule 2 Part 9 Clause 67 (m) of the Planning and Development (Local Planning Schemes) Regulations 2015, as it is not compatible with the development on adjoining land or other land in the locality in terms of its commercial nature and impacts.
3.The proposal is inconsistent was Schedule 2 Part 9 Clause 67(n) of the Planning and Development (Local Planning Schemes) Regulations 2015, as the proposal will adversely impact on the rural/residential character and amenity of the area.
4.The Bushfire Management Plan does not comply with the WAPC's Guidelines for Planning and Bushfire Prone areas (Aug 2017) and that the use should be considered as a vulnerable land use.
Proposed development
By way of letter dated 15 December 2017, the applicant's legal representative clarified that the final amended development proposal that it wished to be the subject of review by the Tribunal was to use the existing private swimming building on the site for the purpose of 'consulting rooms (hydrotherapy)' on the following basis:
Staff numbers
3The Applicant proposes a maximum of 2 staff participating in sessions at any one time. The above number is inclusive of the applicant, who lives at the property. If an assistant is required, they may or may not live at the property.
Hours of Operation
4The proposed hours of operation are 9am to 4pm. It is expected that clients will attend the site slightly before the 9am start, and depart slightly after the 4pm finish.
Number of sessions per day
5A maximum of 7 sessions are proposed during weekdays, starting on the hour, between 9am to 4pm.
6A maximum of 2 sessions are proposed on Saturdays, with start time to be dictated by demand, but in any event, between 9am and 4pm.
Persons per session
7 A maximum of 8 clients are proposed for each session.
8At least 2 of the weekday sessions each day will be reserved for couples (at which a maximum of 2 clients will attend the session).
9The maximum number of clients per weekday is 44 persons.
10The maximum number of clients per Saturday is 16 persons.
Professional Development and Training
11During school holiday periods, the applicant will undertake professional development and training for other practitioners at the Property.
12There will be a maximum of 4 programs per year, with each program running for 6 days (Monday to Saturday).
13The maximum number of clients per training session is 12.
14The maximum hours of operation for the training session are 9am to 4pm.
15Clients may attend the site slightly before the 9am start, and depart slightly after the 4pm finish.
Parking and client management
16The applicant agrees to prepare a management plan to deal with client parking and management. This plan will be run through with all clients prior to their first session, and will encourage clients to ride share with others in their class. Client's will also be encouraged to enter and leave the Property in a quiet and peaceful manner, respective of others in the street.
Fire Management
17The applicant agrees to implement a fire management and evacuation plan in respect of the Property.
18The applicant agrees that during the firebreak notice period each year (as issued under section 33 of the Bush Fires Act 1954), only able bodied clients will be accommodated at the Property. Client's with physical disabilities will be accommodated at alternative locations on an as needs basis by the applicant during that period.
19The applicant agrees that no sessions will be held on days in which the Fire Danger Index, as published by FESA, is Catastrophic.
At the commencement of the final hearing, with the consent of both parties, an order was made giving the applicant leave to amend the development application the subject of review in these proceedings to the original development application as amended by those details.
Issues
The parties agreed that in determining what is the correct and preferable decision upon review of the respondent's decision it is necessary, in these proceedings to focus on the following three issues:
1)Is the proposed development consistent with the objectives of the Rural Living zone and compatible with neighbouring development?
2)Will the proposed development have an unacceptable impact on the amenity of the locality?
3)Does the proposed development adequately address bushfire risk?
The Tribunal is satisfied, having regard to the relevant planning framework identified below, the issues expressed by the parties appropriately summarise the particular aspects on which the determination of the correct and preferable decision in this matter will turn. However, it is convenient to deal with the issues in a different order.
Planning framework
Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provides a list of matters that, to the extent relevant, the decisionmaker must have due regard to when determining a development application. This provision applies in place of cl 10.2 of TPS 4: Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] [47].
Relevant to this application, cl 67 of Sch 2 of the LPS Regulations requires the Tribunal to have due regard to:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
….
(e)any policy of the Commission;
…
(f)any policy of the State;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
…
(zb)any other planning consideration the local government considers appropriate.
The local planning scheme in place in the City of Armadale is the City of Armadale Town Planning Scheme No 4 (TPS 4 or Scheme). The aims of TPS 4 are set out in cl 1.6 of the Scheme and provide:
The aims of the Scheme are
(a)To promote and safeguard the health, safety, convenience and general welfare of the inhabitants of the district, and to achieve an improved quality of living for the people of Armadale;
(b)To preserve and enhance the amenities of the district and to manage land uses so as to minimise conflicts between otherwise incompatible uses;
(c)To promote a sense of place and community identity for residents by fostering a distinctive character based on good design principles;
(d)To provide for a variety of development to meet the needs of the community with regard to housing, employment and services, and to facilitate the provision of a wide range of social and cultural experiences within the district;
(e)To promote the development of an integrated strategic regional centre with a wide range of services, including housing, business, commercial, recreational, leisure, entertainment and community facilities;
(f)To promote a safe and energy-efficient pattern and form of development, balancing the needs of development with those of sustainable economic, social and environmental systems;
(g)To improve the means of access into and around the district, and to ensure the safe and convenient movement of people throughout the district, including pedestrians, cyclists, public transport users and motorists;
(h)To promote sustainable development that integrates consideration of economic, social and environmental goals for the district;
(i)To protect and enhance areas of prime agricultural production to assist in sustaining their use and economic contribution to the district;
(j)To conserve and enhance the natural environmental attributes of the district by incorporating environmental principles into public and private decision making;
(k)To facilitate and encourage effective public involvement in planning issues of significance to the character, amenity and environmental attributes of the district.
(l)To facilitate and encourage high quality design, built form and streetscapes throughout the district.
The site is zoned Rural under the Metropolitan Region Scheme.
The site is zoned 'Rural Living' by TPS 4. The objectives of the 'Rural Living' zone are set out in cl 3.2.3 of the Scheme as follows:
a)To provide for a variety of rural living environments based on defined lot sizes, land form and natural environmental characteristics.
b)To provide for a range of associated compatible development, consistent with the environmental opportunities and constraints applicable to individual sites.
c)To ensure development is sited, designed and managed in harmony with the natural environment and so as to protect the rural landscape and amenity.
The use class 'consulting room' is an 'A' use in the 'Rural Living' zone according to Table 1 - Zoning Table in TPS 4. As such, use of the site for consulting room (hydrotherapy) is not permitted unless the local government has exercised its discretion by granting development approval after giving special notice in accordance with cl 64 of Sch 2 of the LPS Regulations: cl 3.3.2 of TPS 4.
The main State planning policy of relevance to the determination of this matter is State Planning Policy 3.7: Planning in Bushfire Prone Areas (SPP 3.7) and the related Guidelines for Planning in Bushfire Prone Areas, WAPC December 2017, version 1.3 (Guidelines).
Site and locality
The parties agreed the following facts in relation to the site and its locality.
The site is an irregularly shaped lot with an area of 2.8 hectares.
Butcher Road, on which the site is located, is a cul-de-sac which provides access to 16 lots. The cul-de-sac head is located just south of the site.
At the commencement of the hearing, the Tribunal conducted a site view in company with the parties and their representatives. What was observed during the site view was described once the hearing had recommenced at the Tribunal's premises as follows (ts 2 4, 20 March 2018):
EDDY, MS: The first thing to do,I think, is for me to recite what I've observed at the site view which I've just come from. I attended at number 43 Butcher Road in Roleystone and together with the applicant, their representatives and another - a number of expert witnesses, I traversed an area.
I didn't take any evidence while at site; however, in an attempt to describe where we were and what I saw, I will do my best and (indistinct) correct me if I miss anything. We started in the area which is proposed to be the car park area for the proposed business. I noted where that was located in terms of the property and the approximate size of that car parking area. When I looked towards the road, I noticed there is an earth wall at the road edge adjacent to the car park.
Looking up towards the road, I could see the road, to a degree, and limited amounts of the properties opposite at number 44 and 46, the tops of those buildings and the driveways, to some extent. At the time we were standing in the car park, I was asked to note what way the wind happened to be blowing at that time. There was, at times, reasonably strong gusting winds blowing from a direction from the rear of the property towards the road. We went into the building where the proposed business is intended to be run.
We looked at the facilities in there. I observed the views from inside the pool room and there's none, effectively, out towards the road or that side of the property. There are views out over the deck to properties to the rear, but for the most part, that really could only be described as a rural scene. We walked out onto the deck and from the deck, I could see properties to the rear of the applicant's property, but they were at a reasonable distance and I couldn't see any real detail in relation to those properties.
Upstairs room had highlight windows facing the road and I couldn't see anything other than sky out of those windows, and the windows overlooking the valley to the rear of the property didn't reveal any detail of properties in the distance. We came up the driveway, and walking up the driveway in a position where one might expect a car to be exiting the property. On that left-hand side of the driveway I could observe a fair bit of the driveway of number it [sic] that number 44 on the left? And I - - -
SLARKE, MR: (indistinct) 46 on the left, 44 (indistinct).
EDDY, MS: Yes. Sorry. 44 and 46, I could see that there was a house there and I could see the driveway. The detail of the front yard and the house was somewhat obscured by the fencing and the vegetation. If I walked further to the right, to the right-hand side of the driveway, I could see more into the yard of the house at number 46. I couldn't see through any windows - is that 44, is it?
SLARKE, MR: If you are - - -
EDDY, MS: Isn't 44 the closest to the Soldiers Road and 46 furthest away? Okay. I said them completely wrong all the way then. When I've referred to 46, I mean 44. So it's 44 that we have more of a view of the property. 46, we have a view of the driveway - a reasonable proportion of the driveway but not really of the property. Thank you for correcting me, Mr Slarke. Under the conditions today, whether they're unusual or not, I don't know, I certainly couldn't see into any windows.
We walked down the road. I walked down towards Soldiers Road on the left-hand side and came back up on the other side of the road. Walking down Butcher Road towards Soldiers Road, I noted a reasonable amount of vegetation in the road verges, a fair bit of it quite close to the road pavement, other than an area which was a relatively flat unvegetated area near where, I believe, the water easement is that abuts the applicant's property.
I noticed the width of the pavement of the roadway. I noticed an absence of cars, other than one car arriving at number 44. When we were outside there were no other movements up and down the road. I observed there certainly was wind noise apparent to me. At times, there was also vehicle noise that appeared, to me, to be coming from the direction of - that's Brookton Highway, I think; I couldn't be sure about that. But there were, at time, vehicle noise; at other times, it was markedly quiet.
There was also, at times, a dog barking. There wasn't any other significant background noise that I noted. I did note that off both sides of the roads, at various points, the landscape is significantly sloped in areas, and there are parts that are very reasonably well vegetated and there were other areas - and I was asked to notice that there are some areas in the valley on one side that are less vegetated, at least in terms of trees. I think let me run through what I was asked to observe. Gentlemen, have I missed describing anything I was asked to observe?
FOLEY, MR: It's just noting the view when you walk up the staircase.
EDDY, MS: Thank you very much, Mr Foley. I was also asked to walk up the staircase to go to the upstairs room of the building, and I did that and I did observe that I could see the property - the house at number 44 pretty clearly. Again, I couldn't see into any windows, but I could observe the house. I couldn't see much more of 46 than otherwise the driveway, effectively. So those are things I noted. We've now come back to the tribunal. Is there anything we need to address before openings, gentlemen?
SLARKE, MR: No, I don't think so.
Mr Joe Algeri, a consultant planner who was called to give evidence by the respondent, provided the following detail in relation to the locality in his witness statement (Exhibit 11, at paragraphs 13 and 15 18):
13.… [The site] has direct frontage to Butcher Road, the road is a 730 metre long cul-de-sac with the head located south of the subject land. Currently, the subject land is used for residential purposes and is occupied by a single dwelling, a separate indoor poolroom and change room building, and several other smaller outbuilding structures.
…
15.In terms of the site's broader context in the locality, the subject land adjoins a creek line at the rear of the property. This land to the east is reserved for Regional Open Space under the Metropolitan Region Scheme, which contains the Canning River.
16.The north of the land joins to land reserved under the Respondent's LPS4 for Public Purposes, which include Water Corporation infrastructure.
17.The surrounding properties consist of rural living lots of similar sizes due to the zoning of the land. The Butcher Road culde sac provides access to 16 other neighbouring lots.
18Butcher road is meandering, not linemarked and has a pavement width of approximately 6.5 metres. Whilst this width is more than ample for two vehicles to comfortably and safely pass one another in opposite directions, I do note that there is an extensive amount of vegetation in the road reserve, both native trees and shrubs. The effect of this is threefold:
(i)Many properties have dwellings close to Butcher Road but they are not entirely visible because of this screening;
(ii)The canopies of some of the eucalyptus trees extends over the road and vehicles may have a tendency to travel towards the centre of the road; and,
(iii)Sightlines to Butcher Road from individual crossovers might be obstructed by the vegetation.
Mr Henry Dykstra, a consultant planner called to give evidence by the applicant, described the locality in the following way (Exhibit 12, paragraphs 48 to 49):
The existing character of the Rowleystone locality in the immediate area (within 1.0km of the subject site), and in particular Butcher Road abutting and north of the Subject Land can be characterised as including the following:
(a)Large rural residential properties in a hills landscape with significant natural bushland areas;
(b)Properties with large private open spaces and relatively large setbacks;
(c)Winding, slow-moving rural roads;
(d)No pedestrian footpath's;
(e)Small local centre located on Soldiers Road, including a real estate agent, a home wares store, some licenced restaurants/cafes, a wellness centre and an organic produce store.
Butcher Road abutting and north of the Subject Land can be characterised as a rural or low density residential street[.]
From the perspective of bush fire planning, Mr Mike Scott and Mr Roger Banks (bushfire consultants called by the respondent and applicant respectively) described the locality as follows (Exhibit 10, paragraphs 1.4 to 1.8):
4)The entrance to the proposed development (hydrotherapy building) is approximately 450 metres from soldiers Road.
5) The subject land has been identified as being in a designated bushfire prone area from the Map of Bushfire Prone Areas, DFES 2017[.]
6) Classified vegetation within 150 metres of the subject land consists of, forest, woodland and grassland.
7) The local terrain is undulating with significant hills and gullies.
8) The subject site is located near the peak of a hill with the western boundary adjacent to Butcher Road.
None of this evidence is inconsistent and the Tribunal accepts that together, the above evidence adequately describes the site and its locality.
Bushfire risk
The Tribunal heard evidence from Mr Scott and Mr Banks in relation to bushfire risk.
Mr Scott has 45 years' experience in rural and town site bushfire and emergency management operations, and was for 15 years an employee of the Department of Fire and Emergency Services. He is a Bushfire Planning and Design Accredited Practitioner Level 3, holds a Graduate Diploma in Bushfire Protection and has received training as a Bush Fire Behaviour Analyst, in Prescribed Burning and Fire Investigation, amongst other things.
Mr Banks has over 32 years of experience as an operation land manager including forest management, threatened species management, bushfire planning and suppression and management of private and government owned land. He also has over nine years' experience as an environmental risk consultant, which work includes undertaking bushfire planning and risk assessment and management plan preparation. Mr Scott has been a Level 3 fire controller and planner and is a Level 2 Bushfire Planning and Design Accredited Practitioner. He also has completed six units of a graduate Diploma in Bushfire Planning and Design.
Mr Banks and Mr Scott conferred prior to the hearing and agreed on a number of matters (Exhibit 10). It must be said that the format of the joint conferral report is not in accordance with the recommended template provided by the Tribunal and is difficult to easily comprehend.
It is apparent that Mr Banks and Mr Scott agree that the site is located in a designated bushfire prone area as identified in the Map of Bushfire Prone Areas, Department of Fire and Emergency Services 2017. The local terrain is undulating with significant hills and gullies. The site is located near the peak of a hill with the western boundary adjacent to Butcher Road.
Strategen, the entity that Mr Banks works for, developed a bushfire management plan (BMP) in relation to the proposed development (Exhibit 20, attachment 2). The BMP identified that the site is in an extreme bushfire hazard area due to the presence of steep vegetated slopes. It is noted in the BMP that the building that is to be used for the consulting room (hydrotherapy) is already constructed, and as such, it does not, and does not need to, meet the current Australian Standard requirements for construction in a bushfire prone area.
The BMP, in Pt 2.5 Identification of bushfire hazard issues states:
… A bushfire through forest vegetation to the east and north-east, especially considering the steep effective slope in this direction, could result in elevated radiant heat and ember attack on the pool building. Bushfire spread from these directions, in particular from the east under standard summer morning wind conditions, would likely be along vegetation within the Canning River before spreading into the forest vegetation within the lots to the east of Butcher Road, especially given the grassland pasture to the east of Canning River prevents a forest fire approaching the project area.
There is some risk of landscape scale bushfire approaching the project area, in particular from the west, south-west, south and south east, where fire runs exceed 2 km in length, typically through forest vegetation. Bushfire approaching the project area fromm these directions will actually be partially arrested by the grazed land in Lot 67 Butcher Road to the south, woodland vegetation to the south-west of Butcher Road and existing rural residential lots to the west of the project area, which significantly fragment the forest fuel profile and would result in diminished bushfire behaviour. Notwithstanding, potential bushfire behaviour would still be expected to exhibit moderate to elevated levels of radiant heat and ember attack at the bushland interface, especially if driven by south-westerly winds associated with standard afternoon summer wind conditions[.]
The BMP recommends a 21 65 metre wide asset protection zone (management of vegetation within an area to create a low threat situation in relation to bushfire) around the building so as to achieve a Bushfire Attack Level (BAL29) rating and reduce the bushfire hazard at the building in which the proposed development is to occur to moderate. The BMP also recommends three metre wide internal boundary firebreaks along the lot boundaries. The BMP recommends a bushfire evacuation plan be adopted and all customers made aware of that plan. In addition, it is proposed that the facility should be closed on days with a fire danger rating of catastrophic to ensure customers are not brought to the site when the risk of bushfire is at its very highest.
Mr Scott agrees that the site is located in an extreme bushfire hazard area. Mr Scott expanded on the bushfire risk at the site as follows (Exhibit 8, paragraph 66):
…
•Butcher Road is located on a ridge where there is significant down slope of 30.4 degrees on the western side of Butcher Road (Refer Appendix 1 and 3).
•The calculations show flame length and rate of spread results and the map shows the location of the measured slope.
•The BMP has not considered local bushfire and the predicted bushfire behaviour that Butcher Road will be exposed to.
•The BMP has not acknowledged fire behaviour generally experienced in this location. In my opinion, the BMP has used a simple approach assuming wind speed and direction are constant. This approach may be appropriate over flat and gently undulating terrain but applying such a simplistic approach in rugged terrain can lead to serious errors in assessing the likely spread of fire. Specifically, the assumption of constant wind speed and direction fails to recognise the nonlinear or turbulent effects that the terrain can have on local winds. Example of such effects include eddy winds, thermally-driven winds and dynamic channelling; thus fire behaviour, intensity and direction has been either ignored or underrated. …
•Using the same fire modelling as Strategen has used …, I have modelled … using the site assessed 25 degrees, the predicted impact of a fire on Butcher Road is;
•Flame length 91.75m
•Rate of spread 13.47km/h
•Rate of spread 25.7 seconds over 100metres
•In my opinion, considering the above calculations, a fire impacting Butcher Road would make it unsafe during a bushfire event[.]
Based on these calculations, Mr Scott stated that the BMP's proposed asset protection zone would not prevent the building in which the proposed development is to occur from being exposed from direct flame contact during a bushfire event. This is because the building is located at 45 metres from the boundary and if a flame length of over 90 metres occurs, the flame will effectively pass entirely through the asset protection zone without need to gather more fuel on the way. In addition, Mr Scott commented that closure of the consulting room (hydrotherapy) only on a catastrophic fire danger rating would not reduce the risk to people attending the site. In Mr Scott's opinion, the location of the building, the location on Butcher Road (on a ridge) in combination with the local rugged terrain will on high, very high, extreme and catastrophic fire danger days mean people attending the consulting room (hydrotherapy) will potentially be exposed to extreme bush fire behaviour, including ember attack, radiant heat flux and direct flame contact.
In the joint conferral report, Mr Banks agreed that the points noted above raised by Mr Scott were valid points. However, it is his view that these points are equally true of much of the Perth hills landscape where there are many examples of a range of land uses occurring and being approved on a regular basis (Exhibit 10, paragraph 70).
Mr Scott's conclusion in relation to the proposed development was (Exhibit 8, paragraph 78):
The location of the hydrotherapy building and Butcher Road are exposed to potential extreme and erratic bushfire behaviour. In some areas, a fire approaching the hydrotherapy building and Butcher Road from the west and east can travel over 25km/h before impacting slopes of 25 degrees and over 30 degrees the fire will have flame length of over 91 metres. In this environment it this difficult for someone to determine when to evacuate, considering the fire's potential rate of spread over 100 metres is 18.4 seconds. Furthermore, Butcher Road from a firefighter perspective, would be considered in the bushfire industry as the 'Dead Man Zone'. Many lives have been lost, both fire fighters and civilians in this situation.
In the joint conferral report, Mr Banks responded to this statement by making the statement 'legacy issue and cannot be practically resolved' (Exhibit 10, paragraph 78). In oral evidence he expanded on what he meant by this as follows (ts 48 - 49, 20 March 2018):
BANKS, MR: … There's nothing in this particular instance if I may? Because it's in situ it's already developed, essentially. Our bushfire management plan can only deal with the risk that the neighbour that the proponent can control on their land. The bushfire management plan that we prepared doesn't control the City of Armadale's road reserves. It doesn't control all the neighbours' land. So that bushfire risk that can impact on that property, we can only deal with what we what we what we can manage.
The rest of it is in situ - not only for this particular development or proposal. It's in situ for a whole range of activities - for the people down on Station Street; the residents going in and out. So that risk is there all the time, be it night or day.
And further (ts 50, 20 March 2018):
BANKS, MR: Also, in terms of the fire that's happening on the land, we try and get the bushfire management plan (indistinct) deal with the fuels on (indistinct) as much as we can, but that's and the and the owners can control that, as I said. Outside of that, they can't control So you will get particularly if a fire starts on the property, you will have mechanisms to deal with that but if it's a landscape or a bigger fire, starting some distance away, it can have an impact not only on this property, but the neighbouring properties as well and on this site that can happen from three or four different directions.
EDDY, MS: Okay. I guess what I don't quite understand from your perspective, when you're saying these buildings are developed and you've got to manage this site, with these developed buildings I think that's that's a hundred per cent correct, but what I have to decide is whether I can allow a significant number, potentially "significant" is the wrong word. A identified number of people per hour, per day, to come to the site and I guess that's where my questions are leading to. Then how do I grapple with the fact that there are people coming and going, rather than there all the time, and that if I don't approve it the people [sic can't] come?
Well, it's said, to me, family members could come, but presumably not on such a consistent basis, potentially. So you're sort of saying there's an existing problem, but I'm not clear how you're saying to me, "How does that really help me deal with what I do about these extra people?"
BANKS, MR: All I'm saying is the (indistinct) can be managed depending on the bushfire risk on any given day, whether it's catastrophic or whether there's a fire ban day. So they don't come to the facility on those really bad days. That's not the second one. And the second point is if they're invited, part of the invite will have what to do in case there's a fire and if that's not to come to the facility or turn around at point X, then that's the instruction on that day.
And further (ts 52 53, 20 March 2018):
BANKS, MR: My point is that's all over the Perth Hills - and this is a historical development. The situation is already there. People are already using (indistinct) so whether we've got seven people or 40 people, we've still got the risk. It's just a question of, you know, where we intensify that by seven or eight people or not. The other point I would like to make is, in that particular Butcher Road, Brookton Highway and I can't remember the other road that goes out to the east.
A lot of those, if you can if there is a fire, as Mike talked about, in (indistinct) sorts of intensity, a lot of that access will be compromised anyway. So potentially you're better off staying in situ and trying to stay and defend as opposed to particularly if you (indistinct) too late, rather than put people on the road and get them trapped. So there are a couple of things you need to think about.
EDDY, MS: You say this situation exists all over the Hills, and that might be right, but doesn't the policy recognise that the situation might exist, but you have to have a two-way access, and so the - - -
BANKS, MR: That's where you where if I'm coming from a Greenfields site and I'm doing a construction and a management plan, yes, but in this situation I haven't got that because we're not doing the development. You know, we're only doing a this is a change of use on an existing development. I can't prescribe a second access because it's out of the realms of the proponent's capability.
EDDY, MS: So the people who are there are already at risk - and it doesn't make a difference then, really, to you, that there are more people at risk. It's just it's devastating, if it happens, and it doesn't matter if it's a sole person or 40 people; is that - - -
BANKS, MR: The idea is to try and get - prevent people being there on those really bad days.
Mr Banks and Mr Scott agreed that the relevant policies in relation to bushfire that should be considered in relation to this proposed development include SPP 3.7 and the Guidelines.
The objectives of SPP 3.7 are stated in Pt 5 of the policy as follows:
The objectives of this policy are to:
5.1Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
5.2Reduce vulnerabilityto bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process.
5.3Ensure that higher order strategic planning documents, strategic planning proposals, subdivision and development applications take into account bushfire protection requirements and include specified bushfire protection measures.
5.4Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change.
The purpose of the Guidelines is relevantly described in cl 1.1 of the Guidelines as follows:
These Guidelines provide supporting information for decision-making authorities, planners, landowners/proponents, referral agencies, level I Bushfire Attack Level (BAL) Assessors and Bushfire Planning Practitioners, to implement SPP 3.7. Specifically they assist in:
•determining appropriate land use planning in relation to bushfire prone areas across the State of Western Australia;
•specifying the requirements to be made at each stage of the planning process; and
•ensuring that necessary bushfire protection measures are incorporated into development.
These guidelines are designed to assist in the interpretation of SPP 3.7's objectives and policy measures. They provide advice on how bushfire risk is to be addressed when planning, designing or assessing a planning proposal within a bushfire prone area. It is intended that these Guidelines will be reviewed regularly to ensure they reflect best practice.
The Office of Bushfire Risk Management has endorsed these Guidelines as their standard. As an endorsed standard, these Guidelines, in conjunction with SPP 3.7, are the predominant documents in the State for use by decision-making authorities and referral agencies, during the consideration of strategic planning proposals, subdivisions and development applications[.]
Mr Banks and Mr Scott agree that the existing pool building has a BAL rating of BAL29. As indicated above, it was Mr Scott's view that the site was in an area of extreme bushfire hazard. Upon questioning in the hearing, Mr Banks agreed that was the case (ts 61 62, 20 March 2018).
SLARKE, MR: Okay. But the consequence at that point where there's a measurement of 30.4 degrees, for Butcher Road, is that doing your BAL assessment at that point, Butcher Road is at extreme risk. Is that a fair summary?
WITNESS, SCOTT: Well, it is. There's two things there. A BAL isn't really a measurement of your heat flux in a square metre, so where it contacts. So if you pretend there's a ball where the road is, yes, it is it is called plain zone, the the most extreme.
SLARKE, MR: So that's what you've come up with in your calculation at attachment sorry, appendix 1. That's what that exercise is?
WITNESS, SCOTT: That's correct, yes. Yes.
SLARKE, MR: Sorry, and apart from that BAL calculation?
WITNESS, SCOTT: Yes. And and - and the other side is is the the hazard which is the low, moderate and extreme hazard and that depends on your vegetation type and slope. In this case, again, it is extreme.
SLARKE, MR: But it's extreme in terms of hazard and extreme in terms of the BAL calculation, at least at that point.
WITNESS, SCOTT: Correct.
SLARKE, MR: Are you happy with that, Mr Banks? You agree with that?
WITNESS, BANKS: At that particular point, yes.
SLARKE, MR: Yes. Now, do you agree, Mr Banks, that the fact Butcher Road is at the top of the ridge, and with the vegetation which is there which exists, that Butcher Road is pretty much in the worst place you can be for a bushfire event?
WITNESS, BANKS: Along with a lot of others around the Shire of Armadale and around the sou'-west.
SLARKE, MR: Yes, but it's not always cul-de-sacs.
WITNESS, BANKS: Yes.
SLARKE, MR: Yes.
WITNESS, BANKS: Historically.
SLARKE, MR: No. They exist, but - - -
WITNESS, BANKS: Absolutely, they - - -
SLARKE, MR: - - - notwithstanding that - - -
WITNESS, BANKS: It's it's a bad site I will acknowledge that.
SLARKE, MR: Yes.
WITNESS, BANKS: But it's by no means an orphan.
SLARKE, MR: But the consequence of that is, is it not, that Butcher Road, in the case of a bushfire event, is not a safe evacuation route?
WITNESS, BANKS: It's not ideal, no.
SLARKE, MR: Well, no. It's not it's less than not ideal. It's just not safe, isn't it?
WITNESS, BANKS: Under certain conditions.
SLARKE, MR: Right. So - - -
WITNESS, BANKS: In the middle of winter it's not unsafe.
SLARKE, MR: Yes. In the middle of summer, it's probably - - -
WITNESS, BANKS: It's not ideal.
In Mr Scott's opinion, the proposed development does not comply with SPP 3.7 and the Guidelines because it fails to make adequate provision for vehicle access in the event of a bushfire emergency, in accordance with performance principle P3: Appendix four of the Guidelines (P3). It was not in dispute that the acceptable solution in relation to element 3 'vehicular access' could not be met in this proposed development because the site is located on a cul-de-sac longer than 200 metres. In accordance with the Guidelines, it is necessary to then consider the relevant performance principle. At cl 4.5.2.2 of the Guidelines it states:
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. They provide for flexibility and innovative, evidencebased solutions for bushfire risk management. 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[.]
The intent of P3 is 'to ensure that the vehicular access serving a subdivision/development is available and safe during a bushfire event'.
At the hearing, Mr Banks agreed that performance principle P3 of the Guidelines was not met: (ts 62, 20 March 2018). Mr Banks and Mr Scott agreed that it is only possible to achieve compliance with performance principle P3 at the site on days which have been identified as moderate fire risk or below (ts 64, 20 March 2018). They also agreed that it is not possible to predict in advance what periods of time during the year those days will occur, although if the proposed development could only operate on such days it would be likely that it could only operate for five or six months of the year (ts 64 67, 20 March 2018).
In light of the proposed development's inability to meet this aspect of the Guidelines, in Mr Scott's view, the proposed development should be refused. In his view, an important provision in SPP 3.7 is cl 6.11, which provides:
Where a landowner/proponent has not satisfactorily demonstrated that the relevant policy measures have been addressed, responsible decisionmakers should apply the precautionary principle to all strategic planning proposals, subdivision and development applications in designated bushfire prone areas. For example, if a landowner/proponent cannot satisfy the performance principles of the relevant policy measures through either the application of the acceptable solutions outlined in the Guidelines, or through the alternative solutions endorsed by the WAPC and State authority/relevant authority responsible for emergency services, the application may not be approved.
Mr Banks, on the other hand, was of the view that despite the noncompliance with performance principle P3 of the Guidelines, the proposed development was acceptable if the measures recommended in the BMP were adopted. He explained his position in questioning as follows (ts 66 67, 20 March 2018):
SLARKE, MR: In fact, I will withdraw that. I will withdraw that. That's just a complication. I will withdraw that question. Sorry, let's get back on track. In 57 of the joint statement, Mr Scott disagrees that all performance principles have been achieved, and I think now, Mr Banks, you agree that that's correct, not all performance principles have been achieved through the bushfire management plan. But your comment, I think it's to the effect that the bushfire protection criteria of the Guidelines need only be met where it's practical and achievable to do so.
WITNESS, BANKS: Only in in this - - -
SLARKE, MR: Is that what you mean?
WITNESS, BANKS: In this particular incidence, yes, because of the retrospectivity, because it's an existing building, because it's existing access.
SLARKE, MR: Okay. Now, would you agree with me that the Guidelines don't actually say that?
WITNESS, BANKS: No, they don't.
SLARKE, MR: Okay.
WITNESS, BANKS: I understand that.
SLARKE, MR: And in fact, the Guidelines in various places say that they apply to all developments and that you have to achieve them, etcetera, etcetera.
WITNESS, BANKS: They are a guideline.
SLARKE, MR: Yes. The Guidelines also say if you look back to 4.5 at page they start at page 20 which it's section 4.5 of the bushfire protection criteria. (indistinct) 4.5.1, how it would be read (indistinct) and then in 4.5.2.2 - - -
WITNESS, BANKS: What page, I'm sorry? What page?
SLARKE, MR: I beg your pardon. Page 20 and then 21 of the Guidelines.
WITNESS, BANKS: Right at the front.
SLARKE, MR: Yes. That's the section beginning on page 20 which deals with the bushfire protection criteria, which is what we've been looking at. Yes.
WITNESS, BANKS: Yes.
WITNESS, SCOTT: Yes.
SLARKE, MR: And then if you look to page 21, and the second column there is a heading 4.5.2.2 Performance Principle-based Solutions which says what you are meant to do in your bushfire management plan if you're relying on the performance principle-based solutions. And then down at the foot of that paragraph before the dot points - - -
WITNESS, BANKS: Yes.
SLARKE, MR: - - - it explains if you are relying upon a performance principle-based solution what you are meant to do, what you're meant to include. See that?
WITNESS, BANKS: Yes.
SLARKE, MR: Now, the bushfire management plan does not do that in this case, does it?
WITNESS, BANKS: No.
SLARKE, MR: Can I then go back to the joint statement of pleas at paragraph 78. I will withdraw that question. I think we've already dealt with that point. Except the matter of principle, I think, which this brings us to is that, Mr Banks, you're suggesting that because it's a legacy situation, this applicant can't do anything about it, but nevertheless, you think it's appropriate to approve this development?
WITNESS, BANKS: In my experience, yes.
Interestingly, when asked to consider the hypothetical situation of what his opinion would be if the existing pool building had not yet been built, Mr Scott replied (ts 69, 20 March 2018):
SLARKE, MR: This is a hypothetical. If the pool building and its associated infrastructure wasn't there, but the applicant came along and sought approval to build that structure, the facilities and the proposed use, the current commercial use. Would that make a difference to your view?
WITNESS, BANKS: It would. It would make my job as a bushfire planner and a practitioner a lot easier, because I could then prescribe the things that Mike and I have been talking about in terms of additional mechanisms to improve the safety (indistinct).
SLARKE, MR: So you could - - -
WITNESS, BANKS: We could engineer if we can engineer a safe place in terms of access, in terms of the buildings and so - - -
SLARKE, MR: So you can't say [sic save] Butcher Road, but you could something better on the site?
WITNESS, BANKS: Yes.
Mr Scott remained strongly of the view that the proposed development should not be approved (ts 68 69, 20 March 2018).
WITNESS, SCOTT: Well, I believe it is unsafe because Butcher Road is compromised to the extreme. There is nowhere for the people to stay. As Mr Banks said, it's you know, to retrofit the premises will will cost an enormous amount. Basically - you know, I'm not builder, but it will take a lot to retrofit it. I did have a look around when I was there, and it's inadequate to protect people in bushfire. In fact, if you're going to have anything as a refuge, it is actually the 2014 Refuge Guidelines that must be followed.
Just the the vegetation on the side of the road, the enormous risk there, the uncertainty of fire behaviour, road closure through tress coming down. It is very real. And I think I mentioned closing - the bushfire management plan - closing on catastrophic days. They're - just so there's an understanding of high, very high, extreme and catastrophic. you get from low to extreme bushfire behaviour. Catastrophic is not a bushfire behaviour. That means it is that extreme, whatever you do you cannot stop that fire, and the the consequences are catastrophic.
So that's where that comes from. And extreme is extreme. So, bushfire behaviour. So - and and it steps down. And at high it often, especially on a slope like that - you can't supress a fire until it hits level ground or or some other way of controlling it. So the response mechanisms well, not only won't be there because of the time - are very limited. So, you know, if you tie up the risk on the road, the blockage of the road, the people there in the building, it's putting a lot of people in unnecessary risk.
Based on the evidence of Mr Banks and Mr Scott, the Tribunal finds that:
1)The area of the site in which the pool building is located is significantly vegetated with considerably sloping terrain and as such is an area of extreme fire hazard;
2)In the event of a bushfire event near the site, it is possible for there to be flame lengths over 91 metres, with a potential rate of spread over 100 metres of 18.4 seconds;
3)The proposed development does not satisfy the acceptable solutions of element 3, 'vehicle access', of the Guidelines; and
4)The proposed development does not, and cannot, except if it operates only on days of moderate fire risk or below, meet performance principle P3 of the Guidelines.
Although there was no express agreement on the point by Mr Banks, it was stated by Mr Scott that in the event of a fire with a flame length over 91 metres, with a potential rate of spread over 100 metres of 18.4 seconds, the site would be a 'dead man zone' with evacuation from the site being effectively impossible. Mr Scott was not challenged on this evidence and Mr Banks did not say he disagreed with it. The Tribunal therefore also finds that in the event of a significant bushfire of the type described by Mr Scott, evacuation from the site along Butcher Road would not be possible.
The applicant submitted that the proposed development came within the meaning of 'minor development' as defined by SPP 3.7, which in Pt 7 of SPP 3.7 is stated to be:
Refers to applications in residential builtout areas at a scale which may not require full compliance with the relevant policy measures. Classes of development considered under this definition, with the exclusion of unavoidable development, are:
•a single house on an existing lot 1,100m2 or greater;
•an ancillary dwelling on a lot of 1,100m2 or greater; and
•change to a vulnerable land use in an existing residential development.
'Vulnerable land use' is defined in Pt 7 of SPP 3.7 as:
A land use where persons may be less able to respond in a bushfire emergency. Examples of what constitutes a vulnerable land use are provided in the Guidelines.
The term 'existing residential development' is not defined in SPP3.7, but having regard to the full text of the definition of 'minor development' it would seem to refer back to the reference to 'residential built out areas at a scale which may not require full compliance with the relevant policy measures'.
At cl 5.5.1.1 of the Guidelines there is further explanation that a proposed use contained within an existing residential development or associated outbuilding at a scale with that of a typical existing residential dwelling may be treated as 'minor development'
Mr Banks stated that in his view the proposed development did not involve a change to a vulnerable land use on the basis that the applicant has stated that she proposes to limit the clients who may attend the site for hydrotherapy to ablebodied persons. Having expressed this view, Mr Banks went on to state that in his view the proposed development was minor development within the meaning of SPP 3.7.
Mr Scott was of the view that the proposed development is a vulnerable land use because he assumed that clients seeking hydrotherapy were likely to have injuries or some limitations in movement. However, Mr Scott considered that the site was not located in a residential builtout area.
Ultimately, in my view, it makes little difference if the proposed development is, or is not, minor land use in this case. This is because at cl 5.4.1 of the Guidelines, while it is contemplated that minor developments may not be able to fully comply with the Guidelines, each case must be considered on its merits. Relevantly, cl 5.4.1 of the Guidelines states:
Minor development as outlined in policy measure 6.7.1 of SPP 3.7 refers to the development of land on an existing lot in a predominantly residential builtout area, that may or may not have been subject to consideration of bushfire threat in the past, and for which compliance with SPP 3.7 cannot be achieved. In most cases, this type of development will be constrained by pre-existing lot layout and nearby existing land uses. Consequently, each proposal should be given a merit-based assessment based on the principles outlined in policy measure 6.7.1.
…
The precautionary principle remains applicable to minor development applications. It may be that some sites have poor access, inadequate water supply, are in a remote location or on sloping topography which would pose an unacceptable risk even if the development was constructed to AS 3959. In these instances, there is a strong argument for refusal of the proposal even when it meets the definition of minor development. However each case will be assessed on its merits.
…
Clause 6.7.1 of SPP 3.7 provides:
Minor development in areas where BAL-40 or BAL-FZ applies is to be assessed under the requirements of policy measure 6.5, with the addition of a statement against each of the following in the Bushfire Management Plan:
a)where full compliance of 6.5(c) cannot be achieved within the boundary of the development site, evidence must be provided demonstrating to the fullest extent possible how the bushfire protection criteria have been addressed and provide justification for those criteria that have not been met;
b)ensure that the bushfire hazard level is not increased and/or the ability to manage bushfire related hazards on adjoining lands is not otherwise adversely affected;
c)ensure that the siting of the buildings within the boundary of the development site has been optimised to reduce the bushfire impact;
d)give holistic consideration to existing emergency services in the area, existing road networks, water provision, existing places that could function as emergency evacuation centres in a bushfire event, the surrounding landscape, issues that may arise in the course of a bushfire both during and post event, and any other contextual issues relevant to the application of bushfire risk management measures.
From the statements made by Mr Banks referred to above, it seems to the Tribunal that Mr Banks relies overly much on the principle in paragraph (a) of cl 6.7 of SPP 3.7 in giving his opinions in relation to the proposed development. His reasoning does not show any real consideration of the other factors required to be considered by that policy. He also does not seem to apply the statements made in the Guidelines about the need to consider each proposal on its merits and to have regard to the precautionary principle in formulating his opinions. On the other hand, Mr Scott referred to the precautionary principle and in my view considered in a more holistic way all considerations raised by SPP 3.7 and the Guidelines in giving his opinions in relation to the bushfire risk involved with the proposed development. For these reasons the Tribunal prefers the evidence of Mr Scott where the evidence of Mr Banks and Mr Scott differ.
Having regard to the objectives of SPP 3.7 and the purpose of the Guidelines, the Tribunal considers that SPP 3.7 and the Guidelines should be given significant weight.
In this case, whether or not the proposed development is 'minor development' within the meaning of SPP 3.7, the fact is this site is located in an area of extreme bushfire hazard. The site is described as a 'dead man zone' by a very experienced and qualified bushfire expert. In the event of a significant bush fire of the type described by Mr Scott, the Tribunal finds that any clients at the site would in all likelihood not be able to evacuate. As the pool building has not been built to a standard capable of providing a safe haven in the event of a bushfire it would not provide an alternative to evacuation. In addition, there is no evidence before the Tribunal that there is anywhere on the site that could provide a safe haven for clients in the event of a bushfire.
While the proposed development is such that only eight clients will be present during any weekday session for an hour, nonetheless it is proposed that eight clients may be at each of the seven sessions during a weekday. The applicant submits that this number of people is not necessarily more people than might be present at a social function at any residence in the area. That may be so, however, what is proposed is to bring paying customers on a regular basis over the course of the day and the week to the site. People may choose to live in such a dangerous location if they wish, but to operate a business to bring a reasonable number of people on a consistent basis to the site, who may or may not be aware of the danger they may be in in the event of a bushfire, is a very different thing.
In the circumstances of this case, to bring paying customers to the site, which is in a location of extreme bushfire hazard, where the proposed development does not comply with SPP 3.7 and the Guidelines, and where the building to be used is not built to the standard that would be necessary to provide a safe haven, is inconsistent with the objectives of SPP 3.7. Given the purpose for which SPP 3.7 and the Guidelines have been developed, on the background of a series of well-known bushfires that have occurred in recent years in Western Australia with tragic consequences, it is inappropriate, in the circumstances of this case, to allow the proposed development to proceed.
Amenity impact
The existing amenity of the locality and the impact on that amenity that the proposed development would have, are matters on which the two town planning witnesses disagreed. Mr Algeri and Mr Dykstra did agree that the relevant locality for determining the direct impact on amenity is Butcher Road: ts 6, 21 March 2018. However, Mr Dykstra considered that in determining the impact on amenity of the proposed development one would need to have regard to the expectations in relation to amenity in the locality. In Mr Dykstra's opinion, the relevant locality for this consideration is the Armadale hills locality as a whole: ts 6, 21 March 2018. Mr Algeri did not consider the wider Armadale hills locality to be relevant for the purpose of determining the impact on amenity of the proposed development.
Mr Algeri described the existing amenity of the locality, that is, Butcher Road, as 'secluded and peaceful': Exhibit 11, paragraph 21. He went on to state (in the same paragraph):
There are panoramic views in many directions and the only background noise I observed was the wind rustling through the trees and the sound of birds. There was no noticeable vehicle noise from Brookton Highway or other roads and as a result, a vehicle travelling along Butcher Road becomes rather distinct.
In relation to future amenity, Mr Agleri considers that it is not likely that the amenity of the locality would be very different from what it is now. The reason for this was explained in his oral evidence as follows: ts 15 16, 21 March 2018
WITNESS, ALGERI: … well, I don't know if I need to, as a planner, need to broach this idea of future amenity, because my view is that I don't see, from a planning point of view, any drastic changes for Butcher Road. Sure, any road can be extended, but you know the lay of the land better than I do out this area. I think it's a cul-de-sac for good reason. It's on a ridge and it has got nowhere to actually go to.
So I don't know if there's any I would be putting money down to say that it's going to get extended or it's going to join up and there's going to be a big bridge across Canning River. There's 16 lots. I think most or all of them have a residence and that seems to be the clear pattern of what typical development is under the rural living zone, notwithstanding all the discretionary uses. So I, from a planning perspective, don't see that there needs to be any any analysis of future amenity, because I don't see Butcher Road changing significantly in the years to come.
So for me it's simply a case of what is the amenity now that we assume that all the residents enjoy and what is the impact and the degree of impact that this proposal will have and then the million dollar question is: is that acceptable on terms of that analysis alone?
In Mr Algeri's view, the frequency and intensity of clients arriving and leaving the site each hour for up to seven hours a day and for six days a week would have a noticeable impact on the amenity of the surrounding land. Mr Algeri considers that this impact will be, in the context of the existing particularly quiet and low traffic rural living environment, unacceptable.
Mr Dykstra describes the amenity of Butcher Road as follows (Exhibit 12 paragraph 49:
Butcher Road abutting and north of the Subject Land can be characterised as a rural or low density residential street. It is quieter and less busy than a commercial or higher density residential locality, but it is not a pristine rural environment, absent noise and activity[.]
Mr Dykstra further comments that applicant had advised him of a number of factors that impact on the existing amenity of Butcher Road, which include:
•depending on the direction of the wind, heavy vehicles and motorbikes from Brookton Highway and Soldiers Road can be heard on the site, as can activity from the local commercial centre located approximately 400 metre north of the site; and
•groups occasionally park vehicles in Butcher Road and walk along local walking tracks which link to the Canning River and nearby national parks.
Mr Dykstra also noted that, based on internet searches he had conducted, it appeared that some properties in Butcher Road and one on Soldiers Road appeared to be used to provide short stay accommodation.
Mr Dykstra noted that the wider rural living hills area within the City can be characterised similarly to how he described the amenity of Butcher Road and based on the Scheme, properties in this wider area could be used for a variety of land uses including restaurants, function centres, medical centres, holiday accommodation, a child care centre, commercial vehicle parking, home business and civic and community uses such as places of worship and museums.
In determining the impact on amenity of the proposed use, Mr Dykstra had regard to the potential uses of land in the Rural Living zone in the City and concluded that the future amenity of Butcher Road could potentially be very different to what it is now. He disagreed with Mr Algeri on this issue and explained (ts 17, 21 March 2018):
WITNESS, DYKSTRA: See, and that's where I differ and it's probably because I've worked in the hills for 25 years on proposals on both as an advocate, as an assessor for council and as an objector, so I've seen so much change in the hills where in rural living areas with the resulting pressures of metropolitan growth there are changes in the hills that are happening.
You know, Carradine Valley has experienced, you know, pressure for tourism, yoga centres, places of worship, you know, home businesses, art studios, wineries, cafés. So those things as a result of metropolitan growth, those things will be demanded in the hills. And I've seen it happen in little pockets in Armadale, Gosnells, Serpentine. And I can see just because one street hasn't experienced that yet, it doesn't mean that that's not going to happen, because the rural living zone provides for a range of uses and they're attractive environments for uses.
And that's why I think the wider rural living hills locality of Armadale is important to look at and say, 'Well, look, these things have happened elsewhere. It's not unusual.' So I would say Butcher Road may well experience pressure for some tourist accommodation and breakfast - - -
Mr Dykstra concluded that (Exhibit 12 paragraph 52):
In my opinion, after examining the range of activities occurring in the Roleystone Hills Rural Living areas, including those activities that occur in the immediate locality, it is my view that the proposed use, being an internal, quiet and low intensity land use, limited in visitor numbers and limited to the middle of the day, is highly complementary to the existing rural amenity of the locality.
The evidence of the residents of No 44 and No 46 Butcher Road, properties located more or less directly opposite to the site, was different to the description of the noises experienced at the site by the applicant as reported by Mr Dykstra.
Mr Alan Smit resides at No 44 Butcher Road with his wife and two young children. Mr Smit describes Butcher Road as a road which rarely has any vehicle traffic on it and as very quiet. Mr Smit states (Exhibit 6 paragraph 2):
… Often when I drive down Butcher Road I do not see another car. The road is peaceful, safe and picturesque. The feeling I get when driving down Butcher Road is unlike any other I get when driving on other residential streets. Butcher Road … is peaceful and private, it is attractive, it is rural yet within close proximity to town facilities and it has extremely low traffic volumes.
When asked to comment about the noises that the applicant advised Mr Dykstra could be heard from the site, Mr Smit stated (ts 27 29, 20 March 2018):
[Mr Smit]: Yes. All I can say is that from the subject land, I would have no idea because I don't enter the subject land. But from my house - and as you say it's just across the road - we can't hear any vehicles - or any noise coming from Soldiers Road. We do on the odd occasion hear vehicle activity on - on Brookton Highway, especially if we're sitting out the back of our property, which you can actually see Brookton Highway from our property. So we will see sirens and then we will hear sirens from emergency vehicles and we will hear trucks if they're fully loaded and crawling up or - or crawling down the highway, but that's not a very frequent occurrence. From the commercial centre, we don't hear any activity at all from the commercial centre, which is about 500 metres from our house.
[Mr Slarke]: In subparagraph (b) of paragraph 50, Mr Dykstra refers to discussions he has had with the applicant about groups on occasion parking vehicles on Butcher Road and walking along walking tracks. He says he hasn't seen that himself, but do you have any comment on whether you have seen people parking in Butcher Road and/or using walking tracks? - - - [Mr Smit]: Well, I would say that to the best of my knowledge there is no walking track. There is a water pipe - or actually two water pipes that run either side of - of Butcher Road. I've seen vehicles parked in that space, especially in the date range that's mentioned here.
[Mr Slarke]: Is that further on in that paragraph, 24 August to 13 September 2017 you mean? - - - [Mr Smit]: Yes. Yes. But the vehicles that were parked in - in that area during that time, my understanding is that they were vehicles undertaking repairs of the water pipe. We, as a resident of Butcher Road, received a letter from the Water Corp advising us that repairs would be done during that time and that there would be an increase in traffic as a result. I would say that from the picture, those vehicles that I can see in that picture I would hazard a guess to say that pretty much every one of those is related to the water - water pipe repair work. Without repairs being done - so a period of time without repairs - I actually can't recall having seen a vehicle parked in that space. I have, on the one occasion since we've lived on the property, seen somebody walk the pipe, but that was on one occasion. In terms of that informal parking area, well, my understanding is that relates to previous works that were done on the water pipe, so remnants of those water pipe activities.
[Mr Slarke]: Over the page Mr Dykstra refers to internet listings and things which he says internet listings indicate. Now, are you familiar with the first of those properties, number 6 Butcher Road? - - - [Mr Smit]: Yes, I know of 6 Butcher Road. Yes.
[Mr Slarke]: Can you say from your own knowledge whether that is used for short stay rental accommodation or not? - - - [Mr Smit]: I am not aware of that happening. In fact, I don't think I've actually ever seen a car exit 6 Butcher Road at all. [Mr Slarke]: Number 6 Butcher Road is towards the north of Butcher Road, isn't it? Near the Soldiers Road end? - - - [Mr Smit]: From the subject land?
[Mr Slarke]: Yes? - - - [Mr Smit]: Yes.
[Mr Slarke]: The next mentioned property is number 75. That's down the southern end of Butcher Road, isn't it? - - - [Mr Smit]: Correct.
[Mr Slarke]: And now it's said here that that contains a self-contained studio attached to the main dwelling. Now, do you know the owner of 75 Butcher Road? - - - [Mr Smit]: Yes, I do.
[Mr Slarke]: And do you know whether that property has a selfcontained studio attached to the main dwelling? - - - [Mr Smit]: No, it doesn't.
[Mr Slarke]: Right. How do you know that? - - - [Mr Smit]: Because I spoke to David who is the owner and I asked him that very question and he said, 'No, it certainly does not'.
[Mr Slarke]: The third-mentioned property is number 2 Butcher Road. Are you familiar with that property? - - - [Mr Smit]: Yes, I am.
[Mr Slarke]: And the suggestion here is that it's advertised as a location for a psychologist specialising in various things. Do you know, from your own knowledge, whether a psychologist practices there? - - -[Mr Smit]: There was a psychologist who practiced there, but that was over five years ago. The property since then has changed hands a number of times, and I think around about three times. But also 2 Butcher Road is actually accessed off of Soldier Road. It's not - it doesn't have a driveway on Butcher Road, so the only point of access is back on to Soldiers Road. So people leaving Butcher Road - 2 Butcher Road had no reason to use Butcher Road.
[Mr Slarke]: And the fourth-mentioned property number 110 Soldiers Road at approximately 400 metres south-east of the land. Do you know that property? - - - [Mr Smit]: Yes, I do.
[Mr Slarke]: And it's said here it's approved to operate as a function centre. Does it actually operate as a function centre? - - - [Mr Smit]: No, it does not.
[Mr Slarke]: And do you know the owner of that property? - - - [Mr Smit]: Yes, I do.
[Mr Slarke]: And do you know whether or not he was one of the people who objected to this development? - - - [Mr Smit]: Yes, he was. He - he's actually a co-signatory to the first letter that we wrote to the SAT back in 2017.
[Mr Slarke]: And that property is used by the owner as his dwelling, I take it, is it? - - - [Mr Smit]: Correct. That's right. Yes. It it had the conditional approval back in 2005. My understanding of that conditional approval was quite onerous and the property owner then sold to the current owner and that conditional approval has lapsed.
[Mr Slarke]: In Mr Dykstra's statement at paragraph 57 - so it's the next page. Page 10 - he says that the houses on Butcher Road scarcely interact with the road or the streetscape and his view is that as a consequence of that is that what he described as a small change in the vehicle numbers on Butcher Road will not significantly impact on the rural amenity and enjoyment of residents on the rural living blocks in this locality. Do you have any response to the opinion Mr Dykstra expresses there? - - - [Mr Smit]: And, look, all I can to that is that I would say around about half of the properties, in my view, would interact. And when I say interact, I mean that it's not just living in houses. So people use their property. In particular, I could say number 5, I think is - believe it's the Shaw's property. They're quite often in their garden. Colin is quite often out the front walking his dog. But about half the properties, because of the use of the wider space for their garden and whatnot, they would interact, in my view.
Mrs Leith Joy Bungey resides at 46 Butcher Road with her husband. She describes Butcher Road as tranquil and largely free of traffic noise apart from weekly rubbish removal trucks (Exhibit 7). In her oral evidence Ms Bungey expanded on this (ts 36, 20 March 2018):
… It is really quiet. And you might have noticed today that there was hardly any noise. I don't hear any cars at all from Brookton Highway. Sometimes in the still of night I will hear a truck as they change gears to go up the hill. I occasionally hear sirens from Brookton Highway. I never hear cars in Soldiers Road. It's not conducive to trucks driving along it. It's too wide and too narrow. I do hear motorbikes in Soldiers Road sometimes and rarely hear any traffic from Butcher Road.
There is no real dispute, and the Tribunal finds, that Butcher Road is a relatively quiet rural road. It is equally not in dispute, and the Tribunal finds, that Butcher Road is not a place with no background noise at all.
The Tribunal accepts that there may have been in the past an occasion or occasions when groups of people have walked on all or part of Butcher Road as Mr Dykstra was told, but there is no suggestion that this occurs regularly or on any ongoing basis.
The Tribunal is not satisfied that there is any sufficient basis for the conclusion Mr Dykstra reached, based on an internet search of unknown nature and parameters, that the properties he identified in Butchers Road and Soldiers Road are in fact being used in the ways that he described in his witness statement.
The Tribunal accepts the evidence of Mr Smit and Ms Bungey, on which they were not crossexamined, that there is very limited vehicle traffic on Butcher Road. The observations of Mr Algeri, Mr Dykstra, and indeed on the occasion of the Tribunal view, are all consistent with that evidence.
Butcher Road is a cul-de-sac road with only 16 lots fronting on to it.
On the basis of these facts, the Tribunal prefers the description of the existing amenity of Butcher Road given by Mr Algeri, as it is based on, and is consistent with, these facts.
In relation to the future amenity of Butcher Road, the Tribunal is not satisfied that there is any sufficient basis to speculate as to what changes may or may not occur. There is no evidence of any strategy or policy that might promote a significant change to the character of this Road. There is also no evidence of any proposal to change Butcher Road from a cul-de-sac road with only 16 properties located along it. There is no evidence of any current or proposed development plans that might potentially change the character of Butcher Road, other than the proposed development the subject of this review. The Tribunal is not satisfied that Mr Dykstra is in any position to know what may, or may not, happen to the amenity of Butcher Road in the future based simply on his past experiences in the area as a whole. He provided no evidence of that experience being in any sufficiently similar location and with a sufficiently similar character as Butcher Road.
Because of the lack of evidence in relation to what might be the future amenity of Butcher Road, the Tribunal prefers Mr Algeri's position in relation to this. That is, there is no basis to suspect that the future amenity of Butcher Road would be any different to the existing amenity of Butcher Road.
It is apparent from Mr Dykstra's evidence that his opinion in relation to the impact of the proposed development on the amenity of the locality is based to a substantial degree on his view that Butcher Road is, or will become, the same as all other areas within the Rural Living zone in the City, within which a wide range of different uses occur. As the Tribunal does not accept that it has any basis to speculate what the future amenity of Butcher Road might become, an important foundation for Mr Dykstra's opinion is not made out. In addition, as stated above, part of the facts in relation to the existing amenity of Butcher Road that Mr Dykstra relied upon in forming his view have been found to be not correct. In light of this, the Tribunal is not satisfied that Mr Dykstra's final opinion in relation to the acceptability of the impact on amenity can be relied on.
In addition, the Tribunal is not satisfied that the reasoning that the wider hills amenity, or expectations of amenity is relevant in determining the impact on amenity in this case.
The impact on amenity of the proposed development is, in this case, the impact caused by increased vehicular movements along Butcher Road, potential noises from car doors and/or talking as people enter and exit the property and the hydrotherapy building and the visual impact of the carpark from Butcher Road. All of these impacts are of a type that is necessarily limited in ability to impact to the residents of Butcher Road.
There is before the Tribunal no evidence of noise modelling in relation to noises associated with car doors and/or people talking as they move between the carpark and the hydrotherapy building. While Butcher Road is currently a reasonably quiet road, without that evidence the Tribunal is not satisfied it has any sufficient basis to conclude that this would cause noise of such a nature and degree that it would cause an unacceptable impact on amenity.
The introduction of a carpark where up to eight visitor vehicle may be parked at any one time is an element of a very different nature to anything that currently exists on Butcher Road. Mr Smit and Ms Bungey believe that this will have a significant impact on the amenity of Butcher Road. Mr Algeri's opinion was that, given the significant drop in height between the carpark and Butcher Road, the visual impact to a person driving a vehicle past would be very limited. Neither Mr Algeri nor Mr Dykstra specifically addressed the visual impact of the carpark from the perspective of a pedestrian. Mr Algeri's opinion in relation to the impact on amenity as a whole was based on the significant increase in consistent vehicular travel along Butcher Road. In those circumstances, while the Tribunal is satisfied the carpark would have some impact on the visual amenity of people walking along Butcher Road, it does not have any sufficient basis to find that this is an unacceptable impact.
The Tribunal accepts the evidence of Mr Algeri that the regular nature of the increased vehicular trips along Butcher Road, occurring every hour and being up to eight each hour, will cause an unacceptable impact on the existing amenity of Butcher Road. His opinion is based on the facts that Butcher Road is a relatively quiet street that has a particularly low level of existing vehicular traffic as it is a cul-de-sac servicing only 16 lots. Compared to this, the addition of up to eight vehicle movements every hour for up to seven hours on six days a week is significant and will have an unacceptable impact on amenity. The facts relied on by Mr Algeri have been found to be correct by the Tribunal and therefore the foundation for his opinion is sound. The Tribunal is persuaded that the degree of change in the number and consistency of vehicle movements that would be introduced by the proposed development is, on this particular road, such that it would have a significant impact on the amenity of the locality.
Consistency with objectives of Scheme and existing development
Although this issue was framed by the parties to refer to consistency with the objectives of TPS 4, the evidence of Mr Algeri and Mr Dykstra related to whether the proposed development was consistent with the objectives of the Rural Living zone contained in TPS 4.
In Mr Algeri's opinion, the proposed development is inconsistent with one of the objectives of the Rural Living zone, namely the objective of ensuring development is sited, designed and managed in harmony with the natural environment and so as to protect the rural landscape and amenity. This is because, in his opinion, the proposed development will have an unacceptable impact on the existing amenity of this part of the Rural Living zone.
Mr Dykstra is of the view that the small scale of the proposed development, operating during the day time only with the majority of activity occurring indoors and therefore it will not alter the amenity of the Rural Living zone.
The Tribunal prefers Mr Dykstra's opinion on this topic. Mr Algeri's opinion is based on the impact on the amenity on Butcher Road, but the objective is one directed to the zone as a whole, not this isolated area within the zone.
In relation to compatibility of the proposed development with existing developments, the Tribunal is not satisfied that there is anything inherent in the proposed use that is inconsistent with residential development, which is the nature of the existing development in this area. While the Tribunal has found that the proposed development would have an impact on the amenity of the locality because of the particular nature of Butcher Road, this does not mean that the use, per se, is incompatible with residential dwellings. Mr Algeri accepted this to be the case in his evidence; stating that he did not see any issue with conducting a business of this type in this location, his concern arose because of the intensity and frequency of clients arriving and leaving the site.
Conclusion
The Tribunal has determined that the proposed development does not comply with SPP 3.7 and the Guidelines and that in the circumstances of this case, the proposed use should not be approved because of that lack.
The Tribunal has also determined that the proposed development would have an unacceptable impact on the locality, which is relevantly Butcher Road.
For these two reasons, the correct and preferable decision is that the decision of the respondent to refuse the proposed development should be affirmed.
Orders
For the reasons provided above, the Tribunal makes the following orders:
1.The decision of the respondent made on 8 May 2017 to refuse to approve the proposed development is affirmed.
2.The application for review is otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, MEMBER
21 JUNE 2018
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