MOORE RIVER COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2007] WASAT 98
•1 MAY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MOORE RIVER COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 98
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)
HEARD: 27 30 NOVEMBER, 1, 4, 5, 6 AND 11 DECEMBER 2006
DELIVERED : 1 MAY 2007
FILE NO/S: DR 277 of 2004
BETWEEN: MOORE RIVER COMPANY PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision application - Call in of application by Minister for Planning and Infrastructure - Minister directed SAT to hear application but, without determining it, to refer it with recommendations to the Minister for determination - Proposed subdivision to create 550 lots principally for residential purposes with town centre commercial uses - Proposed subdivision first stage in total subdivision contemplated in approved Outline Development Plan to ultimately accommodate 13 500 residents in 5000 dwellings, schools, commercial uses and tourist development - Site located adjacent to Moore River approximately 25 kilometres by road north of Perth Metropolitan Region - Site zoned "Urban Development" under local planning scheme - Site proposed to be zoned "Residential" under draft local planning scheme adopted by local government and publicly advertised - Western Australian Planning Commission recommended modification to draft local planning scheme to zone site "Rural" - Minister directed local government to publicly advertise modification to draft local planning scheme - Local government resolved that, in the absence of indemnification by the State Government, it will not proceed with advertising modification given compensation issues that may arise - Sustainability - Whether proposed subdivision is inconsistent with Western Australian State Sustainability Strategy, State Planning Policy No. 2.6 - State Coastal Planning Policy and State Planning Policy 3 - Urban Growth and Settlement in relation to sustainability in settlements - Whether proposed subdivision inconsistent with subregional structure plan - Weight to be given to inconsistency - Whether modification to draft local planning scheme is a seriously-entertained planning proposal and therefore relevant in planning assessment - Weight to be given to inconsistency - Coty principle - Whether change in government policy can properly affect strategic planning decision Whether proposed subdivision is not generally in accordance with Outline Development Plan - Change in interface between subdivision and tourist development contemplated in Outline Development Plan - Change in location and increase in number and size of areas of public open space - Change in road configuration - Inclusion of medium density lots outside town centre and inclusion of cottage lots - Whether departures from Outline Development Plan are minor in nature - Whether safe and efficient road access reasonably capable of being provided - Whether the application should be refused because resolution of both Houses of Parliament required to enable use of part of State Forest for roadworks - Whether safe drinking water and wastewater treatment reasonably capable of being provided - Whether proposed subdivision design can be assessed and approved on basis of submitted drainage design
Legislation:
Environmental Protection Act 1986 (WA), s 38, s 38(1)
Land Administration Act 1997 (WA)
Planning and Development Act 2005 (WA), s 3(1)(c), s 29, s 68(1)(b), s 87(2), s 138, s 138(2), s 212, s 212(3), s 241, s 241(1), s 246, s 246(2)(b), s 251(1)
Shire of Gingin Town Planning Scheme No 8, cl 1.6(b), cl 3.1.3(i), cl 5.5.1, cl 5.5.3(a), cl 5.5.3(b), cl 5.5.3(g), cl 5.5.3(h)
Shire of Gingin Town Planning Scheme No 9
State Administrative Tribunal Act 2004 (WA), s 29(1), s 167
Town Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA)
Town Planning and Development Act 1928 (WA), s 5AA, s 20(5), s 26(1)(a)(i), s 61, s 70, s 70(2)(b)
Town Planning Regulations 1967 (WA), reg 20, reg 20(1), reg 20(3), reg 20(5), reg 21(2)
Shire of Gingin Town Planning Scheme No 8, cl 5.5.3, cl 5.5.3(b), cl 5.5.3(g), cl 5.5.1
Shire of Gingin Town Planning Scheme No 9
Result:
The Tribunal recommends to the Minister for Planning and Infrastructure that:
1. The application for review should be dismissed.
2. The decision of the respondent to refuse to approve a plan of subdivision in relation to Swan Location 2802, Pt Swan Location 2424 and Pt Swan Location 2914, Barragoon Road, Shire of Gingin should be affirmed.
Category: A
Representation:
Counsel:
Applicant: Mr MJ McCusker QC and Mr PJ McQueen
Respondent: Mr RM Mitchell and Ms DE Quinlan
Solicitors:
Applicant: Lavan Legal
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Agnew Clough Ltd v Town Planning Board (Unreported, WATPAT; No 1 of 1979; 1 May 1980)
Begley v Shire of Wanneroo [1970] WAR 91
Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537
Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97
Clive Elliot Jennings & Co v Western Australian Planning Commission (2002) 122 LGERA 433
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Deputy Commissioner of Taxation v Moore Bank Pty Ltd (1986) 88 FLR 75
Esber v Commonwealth of Australia (1992) 174 CLR 430
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193
Jupp v Computer Power Group Ltd (1994) 122 ALR 711
Methodist Church (NSW) Property Trust v Burwood Municipal Council [1972] 1 NSWLR 288
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
Nicholls and Western Australian Planning Commission [2005] WASAT 40; 149 LGERA 117
Park v Waringah Shire Council (1970) 20 LGRA 312
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Perrott of CPP Pty Ltd and Western Australian Planning Commission [2006] WASAT 260
R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177
Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230
Randwick City Council v Minister for the Environment (1998) 54 ALD 682
Salemi v MacKellar (No 2) (1977) 137 CLR 396
Tang v City of Stirling (1982) 5 APA 161
Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379
Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 All ER 567
REASONS FOR RECOMMENDATIONS OF THE TRIBUNAL:
Summary of Tribunal's recommendations
In October 2003, Moore River Company Pty Ltd applied to the Western Australian Planning Commission for approval of a subdivision of land to the south of the Moore River. The land had been subject to extensive planning in the early 1990s which led to a change in zoning from "Rural" to "Urban Development".
The Commission refused approval to the subdivision. It did so on the basis that it contended that the proposal was contrary to the current strategic planning for the Gingin coast area and the State government's expectations for the area. At the time of the refusal, the Gingin Coast Structure Plan was nearing finalisation, and it proposed a reduced scale of development for the subject site.
The Moore River Company sought a review of the decision in the Town Planning Appeal Tribunal in November 2004. Shortly afterwards, the Minister for Planning and Infrastructure called in the appeal under the provisions of the Town Planning and Development Act 1928 (WA) on the basis that the appeal raised issues of regional importance. The Minister directed the Town Planning Appeal Tribunal not to determine the appeal, but to prepare a report to her.
In January 2005, the functions of the Town Planning Appeal Tribunal were assumed by the State Administrative Tribunal. In the ensuing period between the institution of the appeal and the hearing, there were significant developments in both local and regional planning. A new town planning scheme was proposed which, in the form favoured by the Commission and the government, proposed rezoning of the land to "General Rural".
The Tribunal conducted a hearing lasting nine hearing days. It examined the history of planning for the region, and for the subject site. It examined the impact of the policies based upon principles of sustainability which had been developed in recent years which, the Commission argued, supported refusal of the application.
The Tribunal reached the view that it should recommend against approval of the subdivision by reason of its inconsistency with various State planning policies, the likelihood that it would defeat the intent of the proposed new local planning scheme, and the fact that it did not comply with the existing town planning scheme.
Application for review and call in by Minister
These proceedings involve an application brought by Moore River Company Pty Ltd (MRC or applicant), pursuant to s 26(1)(a)(i) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act) s 251(1)), for review of the decision of the Western Australian Planning Commission (Commission or respondent) to refuse to approve a plan of subdivision in relation to part of MRC's land located at Barragoon Road, South Guilderton (site).
The application for review was commenced as an appeal to the former Town Planning Appeal Tribunal (TPAT) filed on 19 November 2004. On 26 November 2004, the Minister for Planning and Infrastructure (Minister), the Hon Alannah MacTiernan MLA, called in the appeal by signing a direction pursuant to s 70 of the TPD Act (see now PD Act s 246) which states that the Minister considers that the appeal raises issues of such regional importance that it is appropriate for the appeal to be determined by the Minister. She directed TPAT, pursuant to s 70(2)(b) of the TPD Act (see now PD Act s 246(2)(b)), to hear the appeal but, without determining it, to refer it with its recommendations to the Minister for determination.
Pursuant to s 167 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), on 1 January 2005, these proceedings were transferred to the State Administrative Tribunal (Tribunal or SAT). In accordance with the Minister's direction to TPAT, the Tribunal has heard the application over nine days, including a view and submissions. These reasons constitute the recommendations of the Tribunal to the Minister pursuant to s 246(2)(b) of the PD Act.
On 25 November 2005, the former Premier, the Hon Geoff Gallop MLA, advised MRC that the Hon Alannah MacTiernan would not, in her capacity as Minister for Planning and Infrastructure, determine the application for review, notwithstanding her earlier exercise of the call in provision, or make any further decision which involves modification of a proposed local planning scheme. It appears that subsequently the Hon Tony McRae was appointed as Acting Minister for Planning and Infrastructure (Acting Minister) for the purpose of progressing the proposed local planning scheme and modifications to it. It is unclear who has been appointed as Acting Minister for the purpose of determining the application for review.
Subdivision application
On 23 October 2003, Masterplan Town Planning Consultants (Masterplan) lodged the subdivision application, on behalf of MRC, with the Commission for approval to the creation of 661 residential lots, eight areas of public open space, a central retail area and roads. Attachment A to these reasons is a reduced copy of the plan of subdivision submitted to the Commission.
The Commission referred the subdivision application to the Department of Environment for assessment. On 16 December 2003, the Department of Environment indicated that, if implemented, the proposal the subject of the subdivision application appears likely to have a significant effect on the environment and, therefore, recommended that the proposal be referred to the Environmental Protection Authority (EPA) under s 38 of the Environmental Protection Act 1986 (WA) (EP Act). On 14 January 2004, the Commission referred the subdivision proposal to the EPA for assessment under s 38(1) of the EP Act. By letter dated 17 May 2004, the EPA indicated to the Commission that it is precluded from assessing the proposed subdivision, because it forms part of an urban development proposal which was referred to the EPA in 1994.
On 21 September 2004, the Commission accepted its assessing officer's recommendation to refuse approval to the subdivision application. The assessing officer considered that "although generally consistent with the existing planning framework for the area the proposal is contrary to the current strategic planning for the Gingin Coast Area and the State Government's expectations for the area". The Commission's five reasons for refusal of the subdivision application were as follows:
"(i)The proposed development is contrary to the State Sustainability Strategy and proposed Statement of Planning Policy No. 3 – Sustainable Settlements as it:
•Does not promote an urban structure which integrates economic, social and environmental sustainability; and
•Does not maximise accessibility to jobs and services and provide diversity, choice and variety with high standards of urban design and amenity.
The SPP will encourage the consolidation of existing urban areas and provide that new settlements will only be considered where they will have an assured economic base and where they can be efficiently serviced by transport, water and energy infrastructure.
(ii)The subject land is within the area covered by the Gingin Coast Structure Plan, which is near finalisation and will provide a State level strategic planning framework for the area. The Structure Plan may provide for a reduced scale of development south of the Moore River and it would be premature to approve the subdivision prior to finalisation of the Structure Plan.
(iii)The proposed subdivision does not comply with the Shire of Gingin Town Planning Scheme No 8 by reason that it represents a major variation to the Outline Development Plan as approved under Clause 5.5.3 of the Scheme. Approval of the subdivision would prejudice the progressive development of the area and would be inconsistent with the objectives for the 'Urban Development Zone'.
(iv)There is no evidence that the proposed subdivision complies with the Commission's Statement of Planning Policy 2.6 – State Coastal Planning Policy (SPP 2.6).The Commission is not prepared to approve a subdivision proposal that is contrary to SPP 2.6.
(v)The proposed subdivision does not comply with the Commission's Policies DC1.1 (Subdivision of Land – General Principles), DC1.7 (General Road Planning), DC2.2 (Residential Subdivision) and DC2.3 (Public Open Space in Residential Areas) that are provisions of Statement of Planning Policy No. 1 (Variation No. 1) – State Planning Framework Policy for the following reasons:
•there are no service agreements in place in relation to the provision of drinking water and wastewater treatment;
•it does not address safe vehicular access to Wanneroo Road;
•it does not provide for agreements in relation to developer contributions for a river crossing to Guilderton and for community facilities;
•in terms of urban design it does not demarcate the Foreshore Reserve and provides insufficient contour level details for the plan of subdivision to be assessed in detail."
On 5 September 2006, the Tribunal granted leave to MRC to amend the subdivision application by substituting an amended plan as the plan the subject of the review: see Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269. The amended plan reduced the number of proposed residential lots from 661 to 550 and the number of public open space areas from eight to seven. Attachment B to these reasons is a reduced copy of the amended plan of subdivision.
On the seventh day of the hearing, MRC produced a further amended plan of subdivision in order to address issues which were the subject of evidence. The further amended plan of subdivision would reduce the number of proposed residential lots to 499. Attachment C to these reasons is a reduced copy of the further amended plan of subdivision. MRC did not ultimately seek to further amend the subdivision application in accordance with the further amended plan of subdivision. Rather, it contended that if the Tribunal were to find that the amended plan of subdivision is not generally in accordance with an adopted Outline Development Plan (ODP), but the further amended plan of subdivision is generally in accordance with the ODP and otherwise generally acceptable, then the Tribunal should either recommend to the Minister that subdivision approval be granted on the basis of the further amended plan, or alternatively, that a condition of approval should be imposed requiring MRC to amend the amended plan of subdivision to reflect the further amended plan.
The proposed subdivision occupies approximately one‑sixth of an overall subdivision contemplated in the ODP prepared by Masterplan, which was adopted by the Shire of Gingin (Shire) on 16 July 1998 and by the Commission on 17 January 2000. The overall subdivision involves accommodating approximately 13 500 residents in approximately 5000 dwellings in six neighbourhoods around commercial/community/open space centres – of which the proposed subdivision is the first neighbourhood – , two primary schools, a high school, commercial facilities, including local commercial at the centre of each neighbourhood and district commercial, approximately 8% public open space and tourist development. Attachment D to these reasons is a reduced copy of the adopted ODP. The proposed subdivision is in the only part of the ODP land that is the subject of an indicative development plan in the ODP, indicating a detailed subdivision layout including street pattern. This area is identified with an arrow and the words "refer to indicative development plan for detailed subdivision layout for first five years" on Attachment D.
MRC contends, and the Commission does not dispute, that the proposed subdivision would be principally marketed to and, during the first stage of settlement of the overall subdivision contemplated in the adopted ODP, occupied by, retirees, weekenders and holidaymakers. The proposed subdivision is described by Mr Richard Pawluk, a former director of Masterplan who was responsible for the overall subdivision project during the preparation and adoption of the ODP and the lodgement of the subdivision application and who gave evidence on behalf of MRC, as:
"[A] lifestyle/holiday getaway which in its formative years is anticipated to attract the same types of people presently owning properties in Guilderton ie about 20% of the households are permanently occupied by retirees or those not requiring employment or employed part-time, and 80% of households are occasionally occupied by weekenders or holidaymakers."
Mr Pawluk gave evidence, which was not questioned or contradicted, that:
"[T]he minimal services and employment opportunities presently and in the coming years will result in conscious lifestyle choices to buy or live on the land. Family groups in particular are unlikely to be attracted to the area until there are schools, shops, services, community facilities and employment."
Mr Harvey Long, a local real estate agent who gave evidence on behalf of MRC, expressed the opinion that:
"[T]he prospective purchasers of [the lots in the proposed subdivision] will be consistent with the sales evidence of Guilderton. That is, I consider that the majority of purchasers of the lots will be middle-aged professionals seeking an alternative holiday destination to Margaret River, Dunsborough and Mandurah. … The smaller more affordable lots would be attractive to retirees and semi-retirees, as well as, farmers from the wheat belt. In addition to this, a number of lots would be an affordable option to middle income earners (such as tradespersons) seeking a family holiday destination."
Mr Long also expressed the opinion that "apart from a small number of retirees, it is unlikely in stage 1 that there would be any purchasers of the proposed lots seeking to reside permanently in the area, mainly as the core infrastructure (employment, schooling, hospitals) is not available to attract families".
However, as Mr MJ McCusker QC, senior counsel for MRC, conceded in opening, "undoubtedly there would be some commuters who would commute to Perth", given the proximity to the Perth Metropolitan Region and more particularly to regional centres in the northern part of the Metropolitan Region.
Site
The site, which has an area of approximately 62.26 hectares in the amended plan of subdivision and approximately 59.19 hectares in the further amended plan of subdivision, forms part of MRC's approximately 2000 hectare property located on the southern side of the Moore River, opposite the town of Guilderton, with direct frontage to the Indian Ocean (MRC property). The site is approximately 75 kilometres by air and approximately 90 kilometres by road to the north of the Perth Central Business District. By road, the site is approximately 60 kilometres north of the Joondalup regional centre, approximately 30 kilometres north of the proposed St Andrews regional centre in the Two Rocks – Yanchep area, and approximately 25 kilometres north of the Perth Metropolitan Region identified in the Metropolitan Region Scheme. The St Andrews regional centre is planned to have a residential population of approximately 150 000 and to provide approximately 60 000 jobs. Attachment E to these reasons is a regional context map. Attachment F to these reasons is a map showing the MRC property. Attachment G to these reasons is a local context map. The area identified as "Urban Development Zone" on Attachment F and as "ODP Area" on Attachment G is an area of approximately 557 hectares that is zoned "Urban Development" under the Shire of Gingin Town Planning Scheme No 8 (TPS 8 or Scheme) and the subject of the approved ODP under the Scheme. Attachment G shows the approximate site of the proposed subdivision. The site is adjacent to the Indian Ocean and approximately 700 metres to the south of Moore River. Attachments F and G show that the ODP land is separated from the mouth of Moore River by a 19 hectare Crown Reserve which is vested in the Shire for the purpose of "Recreation and Landscape Protection" under a management order made under the Land Administration Act 1997 (WA).
The MRC property rises steeply from the Indian Ocean, with coastal dunes attaining heights of 10 metres AHD near the coast and up to 30 metres AHD further inland. It rises steeply from Moore River up to dune crests along the shore which are up to 50 metres AHD. There is a large, elongated valley to the south of the Crown Reserve. Inland portions of the MRC property are characterised by a major dune ridge. The MRC property ranges in elevation from 10 metres AHD to 75 metres AHD.
The MRC property has been used for farming and grazing purposes for many years and, as a result, much of the land has been cleared and converted to pasture. Remnant vegetation occurs along the river and coastal sections in patches.
The MRC property has sealed road access to Lancelin Road, which is the continuation of Wanneroo Road north of the Perth Metropolitan Region, via Barragoon Road and King Road. A portion of Barragoon Road is formed but unsealed. The subdivision application proposes that MRC will seal the remainder of Barragoon Road so as to provide direct vehicular access from Lancelin Road without the need to drive along King Road, through the Woodridge rural residential community, which is located approximately five kilometres to the east of the MRC property.
MRC originally proposed to create a deviation at the eastern end of Barragoon Road through State Forest to meet Lancelin Road at a point approximately 170 metres to the south of the intersection of Lancelin Road and the Barragoon Road road reserve. The reason for the proposed deviation is that the point of intersection with Lancelin Road is at a higher topographical level than is the intersection with the Barragoon Road road reserve, with the result that there would be adequate sight distance in both directions. However, it is common ground that the excision of an area of State Forest would require an Act of Parliament or a resolution of both Houses of Parliament. During the course of the hearing, in order to avoid the need for an Act or resolution, MRC proposed an alternative access arrangement to Lancelin Road, which involves constructing Barragoon Road up to Lancelin Road and significant cut and grading works for a distance of approximately 400 metres to the south along Lancelin Road to achieve an acceptable sight distance. The traffic engineers called by the parties agreed that these works would achieve an acceptable sight distance, although at considerable cost and with the difficulty of managing a live road during works. The experts also agreed that a deceleration lane of approximately 200 metres would be required in either location and that this is likely to necessitate an excision from the State Forest adjoining the road reserve of Lancelin Road. The experts also agreed that, if excavation and grading works are required, the batters are likely to project into State Forest.
Prior to the commencement of final submissions, Mr PJ McQueen, junior counsel for MRC, indicated that, following the evidence of the traffic experts, MRC had obtained an opinion from another traffic engineer to the effect that alteration to the gradient of the road would not be required to achieve adequate sight distance to the south of the intersection of Lancelin Road and the Barragoon Road road reserve, and that a deceleration lane could be accommodated within the Lancelin Road road reserve, without requiring the excision of State Forest. During the course of final submissions, Mr McCusker indicated that the new traffic engineer had advised that she could prepare an indicative sketch of Lancelin Road in the vicinity of the intersection of the Barragoon Road road reserve which would show safe and efficient road access from Lancelin Road to Barragoon Road without substantial roadworks and the excision of State Forest. The Tribunal adopted Mr McCusker's sensible suggestion that, if it were otherwise satisfied that it should recommend that the Minister allow the application for review and grant subdivision approval, it would allow MRC an opportunity for the new traffic engineer to confer with the existing traffic experts and give further evidence.
Locality
Apart from the township of Guilderton to the north of Moore River, the rural residential community of Woodridge and the smaller rural residential community of Sovereign Hill to its north‑east, the locality is rural in character and comprises land that is used for farming and grazing purposes, undeveloped or used for quarrying. The area between the northern edge of the Perth Metropolitan Region and Woodridge comprises State Forest approximately 13 kilometres in width from north to south. Lancelin Road between the Perth Metropolitan Region and Woodridge runs through this portion of State Forest. The area between the State Forest and the Indian Ocean for approximately 8 kilometres to the north of the Perth Metropolitan Region is known as "Wilbinga". Wilbinga was proposed for open space purposes under the North-West Corridor Structure Plan adopted by the Ministry for Planning in 1994 and is currently proposed as a nature reserve. The southern boundary of the MRC property is adjacent to Wilbinga.
The township of Guilderton comprises approximately 440 residential lots and has a permanent resident population, according to the 1996 Census, of 178 persons. As Mr Long indicated:
"The townsite consists of a majority (possibility 80–90%) of non-permanent residents, who generally use their properties for holidays (either on the weekend or extended holiday periods around Easter and Christmas). The permanent residents are either retired/semi-retired or work in the Shire of Gingin."
Retail and commercial facilities in Guilderton comprise a combined service station/newsagency, a takeaway food outlet, a small supermarket, a supermarket and a delicatessen, restaurant and café near the river mouth. Although the MRC property is located just across Moore River from Guilderton, there is no direct vehicular access. By road, the distance between the MRC property and Guilderton is approximately 20 kilometres.
The rural residential community of Woodridge (which is identified on Attachment G) comprises 324 lots. According to the 1996 Census, Woodridge had a population of 485 people, although at the time accommodated in only 205 dwellings. There are no retail or commercial facilities in Woodridge. As noted earlier, there is a smaller rural residential community known as Sovereign Hill to the north‑east of Woodridge.
Statutory and strategic planning context
Local planning
The site and the remainder of the ODP land was rezoned from "Rural" to "Urban Development" under TPS 8 on 3 March 1995. The rezoning application was supported by an environmental assessment, an Aboriginal archaeological site survey, an ethnographic survey, a coastal engineering study and a report in relation to the Moore River estuary. In February 1994, the proposed rezoning was referred by MRC's environmental consultants to the EPA for assessment under the EP Act. By letter dated 25 February 1994, the EPA informed the then Department of Planning and Urban Development that the "overall environmental impact of the proposal is not so severe as to require formal assessment by the Authority". Twenty-five appeals against the EPA's decision not to assess the proposed rezoning were dismissed by the Minister for the Environment in August 1994.
As a local planning scheme, TPS 8 has effect as if it were enacted by the PD Act: PD Act s 68(1)(b). The general objectives of TPS 8 include to "zone land for the purposes described in the Scheme so as to promote the orderly development of the land by making suitable provision for land use": cl 1.6(b). The purpose and intent of the "Urban Development" zone is "to ensure that the area will derive the maximum possible benefit from the design, layout and provision of works and services": cl 3.1.3(i).
Clause 5.5.1 of TPS 8 states as follows:
"It is the intention of the Council to ensure that subdivision and development of land within the Urban Development zone proceeds only after comprehensive planning to ensure high design standards and cost effective servicing, which is sensitive to the environment."
To this end, cl 5.5.3(a) of TPS 8 is as follows:
"The Council, before supporting any proposal for subdivision or approving any proposal for development of land within the Urban Development zone, shall require the preparation of an Outline Development Plan for the whole of the area or for any particular part or parts as is considered appropriate by Council with regard to the primary intent of the zone and any adopted structure plan."
Clause 5.5.3(b) requires that an Outline Development Plan include sufficient detail to show the following:
"•topography of the area
•natural vegetation of the area
•the existing major road systems
•the location and width of proposed roads and nonvehicular movement systems
•the appropriate location and quantity of commercial, civic and public facilities proposed
•the approximate location of recreation and open space areas proposed, the open space where appropriate to be related to creek lines, native vegetation and other natural landscape features
•the population, residential densities and generalised subdivision layout and development standards proposed, including the spatial location of proposed Residential Planning Code densities
•the distribution of any other proposed land uses
•servicing arrangements and schematic layouts, including reticulated sewerage, water and drainage provision
•the proposed staging of subdivision and development
•such other information as may be required by Council."
Clause 5.5.3(g) and cl 5.5.3(h) state as follows:
"(g)Subdivision shall be generally in accordance with the adopted Outline Development Plan for the relevant area. Development and land use shall generally be in accordance with the adopted Outline Development Plan and subject to the provisions of Table 1 – Zoning Table.
(h)Any departure from or alteration to the Outline Development Plan may be permitted if it is considered the departure is minor in nature, would not prejudice the progressive development of the area covered by the Plan and would not be inconsistent with the objectives of the zone."
As noted earlier, Masterplan prepared an ODP for the whole of the "Urban Development" zoned land which was adopted by the Shire on 16 July 1998 and by the Commission on 17 January 2000. The ODP report states that it was prepared by Masterplan in association with environmental consultants, consulting engineers, landscape architects and urban designers, geotechnical consultants, an archaeologist, an anthropologist, coastal engineers, community consultation consultants and surveyors. It was supported by studies and reports concerning foreshore management, management of the Moore River estuary, environmental assessment, Aboriginal archaeological site survey, ethnographic survey, engineering study, sewerage treatment and disposal strategy, geotechnical investigation, transportation report and public workshops.
Section 8.4 of the ODP report states that the ODP "is essentially a District Level Structure Plan and therefore provides a framework for all significant 'macro' land uses and transportation systems" and illustrates principles of permeability, energy consciousness, residential densities, environmental/landscape consciousness and social interaction. The preface states that "the greater part of the ODP contains broadbrush detail whilst an indicative subdivision layout is provided for the first node of development". Section 8.4 states that the principles reflected in the ODP are evident in the indicative subdivision plan for the first development node. The proposed subdivision generally occupies the area of the first development node referred to in the ODP. The five principles referred to in section 8.4 are as follows:
"Permeability. The ability to safely and conveniently move from a residence to a school, shop, park, etc. incorporates emphatic axes which enhance permeability. Dual use paths can be accommodated for transport purposes in road reserves and for recreation/transport purposes in open space links.
Energy Consciousness. Characterised by facilitating nonmotorised movement, proximity of facilities and safe/low speed road hierarchy.
Residential Densities. Providing a range of densities in different locations, ie medium density (and retirement villages) near commercial centres and open view areas. The provision of a range of densities in each village allows for local residents to relocate within the same area as their household structures and housing requirements change.
Environmental/Landscape Consciousness. Retention of parcels of existing representative vegetation and connecting these, in future planning, as a 'green linked' system.
Social Interaction. The creation of compact neighbourhoods (400 metres in diameter) which encourage walking, cycling and short trips to parkland, corner shops, and facilitate social interaction and therefore community consciousness. A walking and socially interactive urban environment facilitates a friendly neighbourhood."
In relation to population and growth, the ODP report states, in section 8.9.1 as follows:
"The demographic characteristics of the area will change over time. Initial residents are anticipated to reflect the characteristics of the present residents of Guilderton, ie predominantly city dwellers with holiday homes and retirees – with perhaps a greater percentage of permanent residents. …
The time frame envisaged to achieve full growth is approximately 30 years. At the time of full development, the population characteristics will very likely reflect those of Mandurah – a mix of permanent residents (families and retirees) and weekenders/holidaymakers/tourists. There is no accurate means of predicting how and when the resident mix will change. It is acknowledged however that families with children will be more attracted to the area when particular facilities are provided, eg schools."
However, in section 9.6, the ODP report states that approximately 80 children from Woodridge and 20 children from Guilderton travel to Gingin daily for their schooling and that "the Education Department acknowledges that those student numbers almost generate the need for a local school presently". In section 8.5.1, the ODP report states that "the Education Department requires one Primary School for every 1800 dwelling units". As noted earlier, there are approximately 760 dwellings in Woodridge and Guilderton. It is not clear on the evidence how many dwellings there are in the smaller rural residential community of Sovereign Hill. If the proposed subdivision were approved and constructed, there would be 1310 dwellings plus the dwellings in Sovereign Hill in the locality.
In relation to employment opportunities, section 8.9.2 of the ODP contemplates "minimal employment opportunities in the early years of development" and subsequently progressive provision of employment within the overall ODP area subdivision in the form of district and local shopping centres, mixed businesses and service industry (light industry) sites, three schools, recreation centre, community facilities, hospital, emergency services, retirement villages and three tourist resorts. At ultimate development, a total of 1875 jobs are anticipated, with a total residential population of approximately 13 500.
On 21 September 1999, the Shire resolved to prepare a new district planning scheme entitled Shire of Gingin Town Planning Scheme No 9 (TPS 9) to replace TPS 8. At its forum of 2 October 2001, the Shire considered a discussion paper prepared by its Chief Executive Officer with respect to the possibility of rezoning the site and the remainder of the ODP area from "Urban Development" back to "Rural". On 18 December 2001, a meeting was held between the Shire and MRC. In a letter to the Department for Planning and Infrastructure (DPI) dated 7 January 2002, the Chief Executive Officer of the Shire stated as follows:
"Since [the] discussions [on 18 December 2001], Council has questioned whether the Department of [sic] Planning and Infrastructure would be prepared to offer comment in relation to the issue of down-zoning. It could be argued that with the passage of time planning policies and principles have changed substantially, both at a State Government, and Local Government level. Similarly, the previous assumption that Local Government Authorities and community bear the majority of the public infrastructure provision costs also appears to have changed. …
Council's solicitors have provided advice to the effect that down-zoning an 'Urban Development' zone to 'Rural' may be pursued without fear of compensatory action, on the proviso that the principles of 'procedural fairness' are followed.
Advice as to the Department's position with respect to developer contributions, and the implications of down-zoning, would be appreciated."
By letter dated 13 February 2002, Mr Eugene Ferraro, Manager, State Other Regions, DPI, stated that "the Department … agrees with the general proposition stated in your letter".
However, draft TPS 9, which was prepared by the Shire for the purposes of advertising, proposed that the ODP land be zoned "Residential".
On 11 February 2003, the Minister gave her consent for draft TPS 9 to be advertised for public inspection, subject to modifications being effected prior to advertising, including the following:
"The Local Planning Strategy being modified to advise that the State Government does not necessarily believe that the current Outline Development Plan for South Guilderton represents the preferred form of development for the area."
The advertised local planning strategy (September 2003) identified the ODP land as "urban settlement areas with detailed Townsite Structure Plans". However, pages 13 and 29 of the local planning strategy set out the State Government's indication that "it does not necessarily believe the current Outline Development Plan to be the preferred form of development for this area".
The modified draft TPS 9 and local planning strategy were advertised concurrently for public comment from 24 October 2003 to 23 January 2004. The Council received a total of 108 submissions in relation to this matter, including 12 submissions from government agencies, 17 from community groups and 79 from landowners. Approximately 25% of the submissions objected to the proposed "Residential" zoning and development of the ODP land.
On 16 March 2004, before the Shire had provided a report to the Commission on the submissions received in relation to draft TPS 9, the Minister signed a memorandum to the Chairman of the Commission in the following terms:
"SOUTH GUILDERTON OUTLINE DEVELOPMENT PLAN
The State Government is of the view that the current Outline Development Plan (ODP) for South Guilderton does not represent the preferred form of development for the area.
This view was included in the draft Local Planning Policy and the Shire of Gingin's Town Planning Scheme No. 9 which advertising closed on 23 January 2004. Additionally, the draft Gingin Coast Structure Plan released for public comment in December 2003 proposes that any development at South Guilderton is to be consistent with Statement Planning Policy 2.6: State Planning Coastal Policy.
To ensure that the form of development at South Guilderton is consistent with State Government policy, I would like the WAPC to review the current ODP and 'Urban Development' zoning in the Shire's TPS No. 8 including a scientific assessment of the setbacks proposed in the Outline Development Plan and advice on its compliance with the new Statement Planning Policy 2.6: State Planning Coastal Policy and other WAPC policies.
I understand that the Gingin Council will be considering the submissions on the draft TPS at its March and April [meetings] before forwarding the Scheme to the WAPC and myself for final approval. I assume the WAPC will be in a position to forward its recommendation to me by the middle of this year.
Please send the WAPC's review of the ODP together with the Shire's TPS No. 9 for final approval by the middle of this year."
On 22 April 2004, the Chairman of the Commission replied to the Minister's memorandum in the following terms:
"SOUTH GUILDERTON OUTLINE DEVELOPMENT PLAN
I refer to your memorandum of 16 March 2004 requesting the Western Australian Planning Commission (WAPC) to review the current Outline Development Plan (ODP) for South Guilderton and 'Urban Development' zoning in the Shire of Gingin's Town Planning Scheme No.8 and advise this has been considered by the WAPC's Statutory Planning Committee.
A review of the coastal setbacks proposed in the ODP to ensure compliance with Statement of Planning Policy 2.6 – State Coastal Planning Policy is currently being pursued, as is a review of the proposed riverine setbacks.
These issues are, however, relatively minor in the overall context of the scale of the proposed development and the Committee expressed some concern about undertaking a major review of the overall scale of the proposed development given the lengthy planning process that has occurred previously and the approvals that currently exist. It would also be necessary to undertake such a review in partnership with the developer, the Council and the community, which would necessitate an expensive and prolonged process that could not be finalised in the anticipated time-frame.
The Committee is also concerned that while it is [sic] been stated the current proposal does not represent the Government's preferred form of development for the area, it has never been stated what the preferred form of development is. To attempt to review the ODP without a clear appreciation of the Government's preferred form of development may result in a time-consuming and costly exercise that does not achieve that form.
In view of the concerns raised by the Committee and the political sensitivities of this matter it may be beneficial for us and Terry Martin, Chairman of the Statutory Planning Committee, to meet to discuss the Government's preferred form of development for this area and the planning process which is envisaged."
On 29 June 2004, the Minister met the Chairman of the Commission, the Chairman of the Statutory Planning Committee, Dr Andrew Montgomery, then Manager, Integrated Planning Division of DPI, Mr Philip Woodward, Director, Country Planning Program, Statutory Planning Division of DPI and policy officers from the Office of the Minister for Environment, in order to discuss the Government's preferred form of development for the ODP land. On 23 June 2004, Mr Woodward prepared the following notes for the meeting with the Minister on 29 June 2004 which he said had "been ok'd by the Chairman" and which appear to have served the purpose of an agenda for the meeting:
"MOORE RIVER SOUTH – GUILDERTON
| PROCESS | NOTES | |
| 1. | Decide on preferred level of development | - No legal impediment - No compensation payable - Developer will be aggrieved - Shire may not support |
| 2. | GINGIN COAST STRUCTURE PLAN Final document should reflect preferred level of development. (3 months/ 12 months if readvertised) | - Draft advertised to 30 April 04 - Submissions currently being considered - Will need to be endorsed by Minister - Significant modifications should be readvertised |
| 3. | SHIRE OF GINGIN TPS 9 AND LPS Modifications can be made to final documents to reflect preferred level of development. (3 months/ 8 months if readvertised) | - Recently submitted for final approval - Minister must grant final approval to scheme - Commission must endorse LPS - Significant modifications are required to be advertised |
| 4. | OUTLINE DEVELOPMENT PLAN Modifications can be required to TPS 9 to require the ODP to be reviewed to reflect preferred level of development and other matters. (12 months minimum) | - A critical level of development may be required to make infrastructure viable |
| 5. | SUBDIVISION The Commission can refuse the current application for stage 1 (661 lots) for a number of reasons. (2 months) | - If the proponent appeals the Minister can call in the appeal under s70 as it raises issues of regional importance. |
"
MRC submits in the review that these notes "outline a blueprint for how the [Commission] was to deal with [MRC's] subdivision application and downzone [its] land".
On 15 June 2004, the Shire adopted draft TPS 9 and the local planning strategy for final approval, subject to a schedule of modifications, and forwarded Council's decision and the relevant documentation to the Commission for the Minister's final approval. The modifications included the renaming of the "Residential" zone to "Urban" and the consequential modification of the relevant scheme map to amend the zoning of the ODP land from "Residential" to "Urban". The Shire advised the Secretary of the Commission of its decision by letter dated 16 June 2004 which was received by DPI on 21 June 2004.
According to a report by the Acting Secretary of the Commission to the Acting Minister dated 8 March 2006, a final report in relation to draft TPS 9 and the local planning strategy was deferred pending completion of the Gingin Coast Structure Plan (GCSP) (see Region planning section below). On 15 September 2005, the Minister met with the President and Chief Executive Officer of the Shire in relation to the GCSP. On 4 October 2005, the Shire resolved as follows:
"Moved Councillor Aspinall that Council, upon receipt of written indemnification from the State Government in relation to any costs which may arise as a consequence of the removal of the Guilderton South Urban Development Zone, support the following recommendations of the Gingin Coast Structure Plan Steering Committee:
1.That the Western Australian Planning Commission adopt the modified Gingin Coast Structure Plan, as circulated to the Gingin Coast Structure Plan Steering Committee on 7 September 2005;
2.That the Western Australian Planning Commission when considering the draft Shire of Gingin Local Planning Strategy require it to be modified by:
…
b.Deleting the Guilderton South Urban Development area and replacing this with a Recreation and Tourist Node Investigation area; …
3.That the Honourable Minister for Planning and Infrastructure grant final approval to the Shire of Gingin Town Planning Scheme No 9, subject to the Town Planning Scheme being modified by:
…
b.deleting the Urban Zone south of Moore River and replacing this with a Rural Zone;
carried unanimously."
The report dated 8 March 2006 from the Acting Secretary of the Commission to the Acting Minister in relation to the final approval of draft TPS 9 included the following:
"Background
7.2.1The zoning of this land for urban development was approved in 1995 by the previous State Government. The 'urban development zone' required the preparation of an outline development plan (ODP) prior to development and an ODP was subsequently adopted by the Shire and endorsed by the Western Australian Planning Commission in January 2000. The ODP provides for urban development of 557 ha catering for a population of 13 500 people residing in 5200 dwellings.
7.2.2The current government at the time of election in February 2001 made a commitment to review the development potential of this land with a view to moderating the scale and ensuring adequate setbacks and coastal management of any proposed development.
7.2.3The Minister, at the time of considering the request to advertise the new scheme and local planning strategy, required the inclusion of a modification to the strategy to advise that the State Government did not necessarily believe that the current Outline Development Plan (ODP) for South Guilderton represents the preferred form of development for the area.
7.2.4In March 2004, after the advertising of the scheme was completed, the Minister for Planning and Infrastructure wrote to the Chairman of the Commission … requesting a review of the current ODP Plan and 'Urban Development' zoning in the Shire's Town Planning Scheme No 8. This was to include a scientific assessment of the setbacks proposed in the ODP and advice on its compliance with SPP 2.6 – State Planning Coastal Policy and other WAPC Policies.
7.2.5This review was undertaken at a strategic level in the context of the Gingin Coast Structure Plan, a draft of which had been advertised from December 2003 to March 2004. Submissions to this plan were evaluated and amendments made to the Structure Plan, the most significant being the designation of the South Guilderton land for rural use with a recreation and tourist node investigation over part of the land. The rationale for this change was that urban development on this site would be contrary to the State's sustainability agenda in that it would not achieve environmental, social and economic sustainability principles.
7.2.6As the above amendment was considered to be a significant change by the Minister, this proposal was advertised. Attachment 8 provided an explanation of the change and the implications for a future review of the urban zoning of the land. Following significant community support, the Commission adopted the Structure Plan incorporating this significant change over the subject land in October 2005.
7.2.7A large number of submissions to the new Gingin scheme raised objections to the 'Residential' zoning of the land south of Moore River. In some cases it was requested that the TPS and the proposed subdivision of the land be deferred pending the finalisation of the Gingin Coast Structure Plan and other submissions requested that the land be rezoned from 'Residential Development' to 'Rural'. …
Comment and Recommendations
7.2.11The Gingin Coast Structure Plan has undertaken a review of the settlement strategy for the study area. The WAPC, in adopting the Structure Plan[,] have made a clear decision to reduce the settlement status of Guilderton from a major land centre to a village status for the next 25 years. The current and advertised zoning of this land in the scheme and the recommended development of this area as part of the expansion of Guilderton in the Local Planning Strategy are not in accordance with the adopted Structure Plan.
7.2.12If the appeal against the refusal to subdivide this land for urban residential purposes were successful and urban residential subdivision was established, the opportunity to implement the recommendations of the Gingin Coast Structure Plan would be severely limited.
7.2.13The WAPC is required to endorse the local planning strategy for the Shire of Gingin provided it satisfies State and regional policy and to make recommendations with regard to the finalisation of the town planning scheme. In this regard, the WAPC in adopting this plan has a responsibility to implement the recommendations of the Structure Plan at the time of considering the new town planning scheme and local planning strategy.
7.2.14The rezoning of any land from urban development to rural without agreement by the owner/owners is rare, if not unprecedented, in Western Australia. The Shire of Gingin has requested written indemnification from the State Government in relation to any costs which may arise as a result of removal of the urban potential of the land. …
7.2.16A change in zoning of the land from Residential Development to 'General Rural' in Town Planning Scheme No 9 and the modification of the local planning strategy to identify the area as a tourism and recreation node investigation area would be in accordance with the recommendations for this area in the Structure Plan. …
7.2.18If the Commission resolves to proceed with the change in zoning of this land as indicated above to ensure the implementation of the Gingin Coast Structure Plan, it is recommended that this be regarded as a substantial change from the zoning in the current scheme and advertised for public comment."
The Commission resolved to recommend to the (Acting) Minister to direct the Shire to readvertise the modifications to draft TPS 9 in Attachment 5 of the report for a period of a minimum of 28 days in accordance with reg 20(1) of the Town Planning Regulations 1967 (WA) (TP Regulations). The modifications in Attachment 5 to the report included "modify the zoning of South Guilderton area from Residential to General Rural" and corresponding changes to the local planning strategy. The proposed modifications to the local planning strategy include the insertion of the following text:
"On the south side of Moore River, a large area of land had been zoned for future urban development under the Shire of Gingin Town Planning Scheme No. 8. An outline development plan for that area was adopted by the Commission in January 2000.
Since that time the Gingin Coast Structure Plan has been approved by the Commission. In the structure plan Guilderton has been designated as a Village under the Gingin Coast Structure Plan, to accommodate 2000 – 5000 people (excluding South Guilderton) in the long term. Due to the constraints associated with developing land immediately adjacent to the townsite, a townsite expansion investigation area has been identified to the north and east of town.
The structure plan proposes the land in South Guilderton be zoned Rural and identified as a recreation and tourist node investigation area. Urban development will not proceed in that area and the outline development plan approved by the Commission in January 2000 does not reflect the appropriate form of development for the area. Future development of this area for recreation or tourism will require detailed investigation."
Each of the modifications to draft TPS 9 and the local planning strategy in relation to the ODP land in Attachment 5 is expressed to be made "in accordance with the Gingin Coast Structure Plan".
Section 4.2 of the GCSP relevantly states as follows:
"The Shire of Gingin Town Planning Scheme No. 9 and the supporting local planning strategy are currently being finalised by the Shire of Gingin. The development of the Gingin Coast Structure Plan has been developed in concert with the town planning scheme and local planning strategy. The review of both the state and local planning initiatives over time will continue with the view to aligning these planning instruments."
On 9 August 2006, the Acting Minister approved the recommendations of the Commission for draft TPS 9, subject to changes which are not relevant to this review.
On 15 August 2006, the Secretary of the Commission advised the Shire of the Acting Minister's decision.
On 19 September 2006, the Shire received a report from its Chief Executive Officer in relation to the Acting Minister's direction that the Shire readvertise modifications to draft TPS 9 and the local planning strategy, including the modifications concerning the ODP land. The Chief Executive Officer reported that, on 24 August 2006, he met at length with the Shire's solicitor "in order to ascertain the legal implications should Council decide to comply with the Ministerial directive issued in respect of modifications to Council's draft LP strategy and draft LPS No. 9". The Shire's solicitor subsequently provided detailed written advice in which he indicated that, although he doubted that a claim for compensation by MRC would be successful, the possibility of a claim being made could not be ruled out, and advised that the Shire should pursue its request for an indemnity from the State for acting upon the Ministerial direction. On 28 August 2006, the Chief Executive Officer met with Mr Henry Dykstra, the Shire's planning consultant, "in order to ascertain the planning implications should Council choose to comply with the Ministerial directive". The Chief Executive Officer also referred to a letter from MRC's solicitors dated 6 September 2006 which stated that "the advertising and subsequent adoption of TPS 9 in accordance with the purported modification may have very significant financial consequences for my client such that my client would seek to resist and challenge any purported adoption and/or seek appropriate compensation or damages".
The Chief Executive Officer's report states as follows:
"Having regard to the advice received from both [the Shire's solicitor] and [Mr Dykstra], Council's Chief Executive Officer formed the view that the most critical issue from a Discussion Paper perspective was the legal liability accruing to Council in respect of potential damages should Council accede to the down-zoning of the Guilderton South land to 'Rural'".
The Shire accepted the Chief Executive Officer's recommendation to make the following resolution:
"1.Resolve, in response to the Minister's request to advertise the rezoning of the Urban Development zoned land south of Guilderton to 'Rural', to maintain its position on this matter, as summarised in Submission 7(6) of the adopted Schedule of Submissions; and
2.Seek an immediate meeting with the relevant Senior Planners/Managers from the Western Australian Planning Commission to negotiate favourable outcomes on each of the outstanding issues as referenced in the advice of Dykstra Planning dated 4 September 2006, including Council's position as outlined in '1.' above."
The Shire's "position on this matter, as summarised in Submission 7(6) of the adopted Schedule of Submissions" was to dismiss, in part, the submission that the ODP land should be rezoned back to 'Rural' and that if the land is not developed within "a prescribed time frame consistent with the periodic Scheme review, the land may be rezoned to its original state".
Attachment H – Indicative development concept for stage 1
Attachment I – Further Amended Draft Conditions
Shire of Gingin and Main Roads WA
"1.Prior to the commencement of any subdivisional works, the subdivider to make the following provision for the construction of a minimum two lane bridge with pedestrian/cycle way across the Moore River suitable for vehicular and pedestrian traffic, connecting the subdivision area to the road network of the Guilderton Townsite to the satisfaction of the Local Government:
a)the preparation, in consultation with relevant State Government agencies, of a feasibility study to examine and confirm the location, construction and costing details of the bridge;
b)the obtaining of a statement that the proposal for the construction of the bridge may be implemented, pursuant to s. 45(5) of the Environmental Protection Act 1986;
c)The preparation and execution of a Deed of Agreement with the Local Government and the Western Australian Planning Commission in which the Local Government and the subdivider undertake to construct the bridge at the subdivider's cost at a time agreed in the Deed (Local Government).
[The Applicant disputes Condition 1 of the Respondent's Conditions requiring the construction of a two lane vehicular bridge, with pedestrian access that connects to the existing Guilderton road network in that:
i.The condition does not relate to the development applied for and is unreasonable given that the river crossing corridor identified in the Outline Development Plan (ODP) is physically remote from the subdivision application; and
iiThe river crossing is contemplated in the ODP as forming part of later developments (See figure 12.2 of the ODP, page 2376 of the Applicant's bundle of documents which contemplates a river crossing in 5 to 10 years after the initial subdivision). There is nothing in the ODP or any other subdivision plan or policy that requires the river crossing to be constructed in the subdivision application applied for. ]
2.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, including to Barragoon Road, and such road(s) being constructed and drained at the subdivider's cost. Those constructed roads are to be dedicated as public roads on the first diagram or plan of survey lodged for approval and approved by the Western Australian Planning Commission (Local Government).
3.Barragoon Road being constructed to the requirements of the Local Government from the subdivider's land to an intersection with Lancelin Road. The intersection of Barragoon Road and Lancelin Road is to be at a point approved by Main Roads WA. Any works required to regrade Lancelin Road, so as to provide safe entering sight distance at the approved point of intersection of Lancelin Road and Barragoon Road, are to be undertaken at the subdivider's cost to the satisfaction of Main Roads WA. The intersection of Barragoon Road with Lancelin Road is to be designed and constructed at the subdivider's cost to the satisfaction of Main Roads WA (Local Government, Main Roads WA).
[The Applicant disputes Condition 3 of the Respondent's conditions requiring that Barragoon road be constructed at a point south of its existing intersection. The condition should rather seek to ensure safe and effective access from the subdivision to Lancelin Road along Barragoon road. The Condition should be contingent on Main Roads and the Applicant negotiating safe and effective access to Lancelin Road.
The Respondent has modified the condition to allow for the possibility of maintaining the existing intersection of Barragoon Road and Lancelin Road, while regrading Lancelin Road to provide adequate entering sight distance]
4.Street corners within the subdivision are to be truncated to the standard truncation of 8.5 metres (Local Government).
5.The internal road reserve widths to be as indicated on the approved subdivisional plan, unless otherwise agreed between the subdivider and the Local Government (Local Government).
[The Applicant disputes Condition 5 of the Respondent's Conditions requiring the compliance of the internal road reserve widths with the Shire of Gingin's policy as the condition is unreasonable given that the road reserve widths accord with the WAPC Policy requirements, as well as the Liveable Neighbourhoods policy.
The Respondent has accepted the objection and modified the condition accordingly.]
6.The areas proposed to be set aside for public open space and drainage on the approved plan of subdivision being shown on the diagrams or plans of survey lodged for approval and approved by the Western Australian Planning Commission as a "Reserve for Recreation" and a "Reserve for Drainage" respectively and vested in the Crown under Section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown (Local Government).
[The Applicant disputes Condition 6 requiring the designated land identified for public open space, the community facility and drainage be vested in the government as a reserve for recreation in that:
iThe areas reserved for drainage should not be set aside as a reserve for recreation but rather as a reserve for drainage;
iiThe community facility should not be set aside as a reserve for recreation, but transferred as freehold title to the Shire of Gingin upon completion of the community facility;
iii.The Applicant further recommends that there be mention of the fact that the developer will no longer have responsibility for the land once it has been vested in the Shire of Gingin; and
iv.The Applicant has always been of the opinion that such vesting should take place, though recommends that it be following the sale of all stage 1 lots rather than a pre-condition to subdivision.
The Respondent has accepted the objection in 5.1 and 5.2 and modified condition 11 accordingly.]
7.The coastal foreshore reserve shown on the approved plan of subdivision being shown on the first diagram or plan of survey lodged for approval and approved by the Western Australian Planning Commission as a "Reserve for Recreation and Foreshore Management" and vested in the Crown under Section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown (Local Government).
8.The Moore River South Coastal Foreshore Management Plan and Strategy (March 1996) ("the Coastal Foreshore Management Plan") is to be reviewed and revised to take into account current management practice and policy to the requirements of the Shire of Gingin and the Department of Environment and Conservation (Department of Environment and Conservation) (Local Government).
[The Applicant disputes Condition 8 of the Respondent's Conditions that requires the Moore River South Coastal Foreshore Management Plan (1996) be revised as the Applicant contends that the current Coastal Management Plan (Moore River Coastal Management Plan and Strategy (1996) by Alan Tingay and Associates) is sufficient and does not require modification, to the extent required by the Condition, by either the Shire of Gingin or the Department of Environment and Conservation.]
9.Any works proposed in the Coastal Foreshore Management Plan for the coastal foreshore reserve shown on the approved plan of subdivision are to be completed prior to the first diagram or plan of survey being lodged for approval and approved by the Western Australian Planning Commission (Department of Environment and Conservation) (Local Government).
10.The Management Plan for the Southern Foreshore of the Moore River Estuary being reviewed and revised to take into account current management practice and policy to the requirements of the Shire of Gingin and the Department of Environment and Conservation, and the completion of the works required by that plan as revised for stage 1 of the subdivision (Local Government).
[The Applicant disputes Condition 10 of the Respondent's Conditions that requires the Management Plan for the Southern Foreshore of the Moore River Estuary (1996) be revised as the Applicant contends that the current Coastal Management Plan (Management Plan for the Southern Foreshore of the Moore River Estuary (1996) by Alan Tingay and Associates) is sufficient and does not require modification, to the extent required by the Condition, by either the Shire of Gingin or the Department of Environment and Conservation.
The Respondent has accepted the objection, to the extent that it is unreasonable to require the subdivider to prevent access, and has modified the condition accordingly]
11.The subdivider entering into a Deed of Arrangement with the Local Government providing for the construction at the subdivider's cost of a community facility in the area identified for that purpose on the approved subdivisional plan and the transfer of the freehold title in that area to the Shire of Gingin free of cost
onafter the completion of the construction of the community facility and prior to the sale of more than 50% of the lots shown on the approved plan of subdivision (Local Government).[The Applicant disputes Condition 11 requiring that the Applicant enter into an agreement with the Shire of Gingin concerning the construction of a community facility, at the cost of the developer, prior to the survey of more than 500 lots. The Applicant contends that the condition is unreasonable and the Applicant is of the opinion that the community facility should be built once all of the stage 1 Lots have been sold rather than prior to the survey of 500 lots.
The Respondent has accepted the objection in part, and modified the objection accordingly]
12.An integrated urban water management plan is to be prepared and implemented as part of the subdivisional works, to the requirements of the Department of Water and the Local Government. The integrated urban water management plan will provide for the drainage from any development in the subdivision area to be contained within that area. No stormwater management infrastructure is to be established within the area set aside as a Coastal Foreshore Reserve in the approved plan of subdivision (Department of Water) (Local Government).
13.The land being graded and stabilised to the satisfaction of the Local Government (Local Government).
14.Construction plans being submitted for approval of the Local Government for all cut, fill and retaining walls required within the subdivision area, and thereafter all works to be implemented in accordance with the approved plans (Local Government).
15.The land being filled and/or drained at the subdivider's cost and any easements and /or reserves necessary for the implementation thereof, being granted free of cost (Local Government).
16.The subdivider shall enter into a Deed of Arrangement with the Local Government in which the subdivider undertakes that land designated for retail in the approved plan of subdivision is to be zoned to reflect those uses prior to being developed or sold (Local Government).
[The Applicant disputes Condition 16 of the Respondent's Conditions that requires the Applicant to enter into an agreement regarding the subsequent zoning of land designated as 'retail' in that:
i.Under Town Planning Scheme 9 the Convenience Store is an "A" use. This zoning allows the development to proceed, provided special notice is given; and
ii.The Condition is unreasonable as the Shire of Gingin has the sole responsibility for zoning over the land subject of this appeal and the Applicant has no control over this condition.]
Fire and Emergency Services Authority
17.A Fire Management Plan being prepared and implemented to the specifications of the Local Government and the Fire Emergency Services Authority (FESA) (Local Government).
[The Applicant disputes Condition 17 of the Respondent's Conditions that requires a fire management plan be prepared and implemented in that the Condition is unreasonable as the Applicant has previously prepared a fire management plan to the specifications of the Fire and Emergency Services Authority (Fire Management Plan Moore River South Townsite (September 2003) by FirePlan WA, which was submitted with the Subdivision application.]
Department of Education and Training
18.The subdivider shall enter into a Deed of Arrangement with the Department of Education and Training in which the subdivider undertakes to provide land to be ceded free of cost for a school site within a future stage of the subdivision (Department of Education and Training).
[The Applicant disputes Condition 18 of the Respondent's Conditions that requires land be ceded to the Department of Education free of cost for a school site, as part of a future subdivision as the Condition does not reasonably relate to the subdivision applied given that the Condition refers to future actions to be taken in potential future subdivision applications. The Condition is premised on the occurrence of a future event that may never occur.]
Electricity
19.Suitable arrangements being made with Western Power for the provision of underground electricity supply to the lots shown on the approved plan of subdivision (Western Power).
20.The transfer of land as a Crown Reserve, free of cost to the Western Power for the provision of electricity supply infrastructure (Western Power).
21.The provision of easements for existing or future electricity supply infrastructure, as may be required by Western Power being granted free of cost to that corporation (Western Power).
Water Services
22.All lots are to be connected to a reticulated water supply and sewerage services provided by a service provider(s) licensed under the Water Services Licensing Act 1995, and any required easements for that purpose being granted to the service provider(s) free of cost (Licensed Service Provider).
22AAll necessary statutory approvals, permits, licences or other statutory requirements for all works required for the supply of water supply and sewerage services to the subdivisional area by a service provider(s) licensed under the Water Services Licensing Act 1995 are to be obtained prior to the commencement of any subdivisional works. (Licensed Service Provider).
Department of Environment and Conservation
23.Measures being taken to ensure the identification and protection of any vegetation on the site worthy of retention prior to commencement of site works (Department of Environment and Conservation).
24The tuart woodland in the northern part of the subdivision area being retained and protected in public open space reserves (Department of Environment and Conservation).
24AA Tuart and Coastal Sheoak Management Plan for all tuart and coastal sheoak located on the subdivider's land being prepared and implemented to the requirements of the Department of Environment and Conservation (Department of Environment and Conservation; Local Government)
25.Any areas of State Forest 65 required for the purpose of providing a safe intersection of Barragoon Road and Lancelin Road, including:
a)any widening of, or provision of a slip lane on, Lancelin Road; or
b)any deviation of Barragoon Road or regrading of Lancelin Road required to provide safe entering sight distance at the approved point of intersection of Lancelin Road and Barragoon Road,
being removed from State Forest 65 prior to the commencement of any subdivisional works (Department of Environment and Conservation).
[The Applicant disputes Condition 25 of the Respondent's Conditions that requires Barragoon Road to be excised from State Forest 65 prior to the commencement of any road works. This condition assumes that the excision from the state forest is required prior to road works commencing.
The Respondent has accepted the Applicant's objection in part and modified the condition accordingly]"
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