JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: NARCOM HOLDINGS and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 23
MEMBER: MR P McNAB (MEMBER)
MS M CONNOR (MEMBER)
MR P CURRY (SESSIONAL MEMBER)
HEARD: 31 MAY 2010; 1, 2, 3 AND 4 JUNE 2010; 23 AND 24 AUGUST 2010
DELIVERED : 7 FEBRUARY 2011
FILE NO/S: DR 424 of 2009
BETWEEN: NARCOM HOLDINGS
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Rural land - Land used for grazing - Subdivision contemplating rural residential development - Interpretation of poorly drafted local planning scheme - Scheme on its true construction contemplating rural residential development of the land - Subdivision therefore not contrary to orderly and proper planning - Subdivision therefore not inconsistent with State policies regulating management and fragmentation of rural land - Land environmentally sensitive - Land abutting conservation wetland - Locality subject to extensive studies over 25 years - Significance of visual, physical, environmental and ecological factors - Sustainability - Whether these factors could lead to refusal of subdivision - Whether these matters could be regulated by conditions - Substantial mosquito risk for future residents - Absence of any State policy on biting insects - Small number of residents affected - Notices on title - Proposal otherwise warranted approval - Conditional approval to subdivision given by Tribunal
Legislation:
Greater Bunbury Region Scheme
Planning and Development Act 2005 (WA), s 251(1)
Shire of Harvey District Planning Scheme No 1, Pt V, Pt V(a), Table 27, Table 28, Table 29, cl 8.1(a), cl 8.4, cl 9.1, cl 9.1.1, cl 9.1.4, cl 11.6, cl 11.6.7, Sch 1, Sch 4, Sch 14, Sch 14A
Result:
Application for review allowed
Conditional approval given to subdivision
Category: B
Representation:
Counsel:
Applicant: Mr P McQueen
Respondent: Ms C Ide
Solicitors:
Applicant: Lavan Legal
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Moore River Company Pty Ltd v Western Australian Planning Commission [2007] WASAT 98
Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232
Waddell and Western Australian Planning Commission [2007] WASAT 82
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review concerned a small rural residential subdivision near Australind. Six lots were proposed to be carved out of approximately 35 hectares of grazing land located next to the Leschenault Estuary. The area had considerable environmental sensitivity attaching to it. For over 25 years, State and local agencies had been engaged in numerous reviews, studies and plans for the locality and region.
The Western Australian Planning Commission had refused to permit the subdivision because of its alleged resulting inconsistency with the planning framework, particularly the Commission's policies on the management and fragmentation of rural land.
The Tribunal, upon a true construction of the Shire of Harvey's local planning scheme, held that such rural residential development was, in fact, contemplated by the scheme. This was so, even allowing for the fact that the relevant parts of the scheme were, as to their drafting, 'hardly a model of clarity or exactitude'.
Once this matter was established, it could not be said that the proposed subdivision was inconsistent with orderly and proper planning for the subject land. In such circumstances, none of the Commission's written policies governing the break up of rural land had any role to play in opposition to the subdivision. There was, in fact, no controlling planning instrument that was directly inconsistent with the text of the local scheme.
The Tribunal also conducted a lengthy review of the visual, physical and ecological issues surrounding the development. Apart from one issue - the impact and control of mosquitoes - nothing in these matters were sufficient to warrant refusal of the proposal and otherwise these were matters that could be regulated by conditions.
Although troubled by the mosquito issue, the Tribunal ultimately concluded as follows:
Where, as here, a relatively small number of persons are likely to be affected by one particular negative factor, a factor that as a starting point can be brought to any purchaser's attention under existing title arrangements, then in the absence of a specific State policy setting down guidance for such decisions, and where the proposal otherwise warrants approval on its merits, we have concluded, albeit after anxious consideration, that conditional approval to the subdivision ought to be given.
Therefore, the Tribunal gave conditional approval to the proposed subdivision. The parties were directed to negotiate to bring in the extensive conditions needed to regulate the subdivision and the proposed development.
Introduction
On 14 July 2008, Narcom Holdings Pty Ltd (applicant) made application to the Western Australian Planning Commission (respondent or WAPC) for approval to subdivide Lot 102 Cathedral Avenue, Parkfield (Lot 102 or subject land) into six lots, each of between 5.26 and 6.57 hectares. Rural residential development is contemplated on each of the lots, but the land is currently used for grazing purposes.
The respondent refused the application on 6 October 2009 for the following reasons:
1.The proposed subdivision is inconsistent with the 'General Farming' zoning of the land, the principal purpose of which is to preserve land for 'viable large scale farming'. The proposed subdivision is also inconsistent with the minimum lot size required by Table 8 [of the Local Planning Scheme] and applicable to the General Farming zone which is 40 [hectares].
2.The proposed subdivision does not comply with Clause 9.1.4 of the Local Planning Scheme applicable to 'Places of Landscape Value' which requires a minimum lot size of 40 [hectares].
3.The proposal does not comply with Schedule 14 'Planning Precinct Policy Area Statements' of [the Local Planning Scheme], which promotes retention of land and low-intensity rural uses only. The proposal therefore does not comply with Clause 8.4 of the Local Planning Scheme.
4.The proposal is inconsistent with the Greater Bunbury Structure Plan's designation of the subject land as an area ' … under consideration for Conservation, Scenic Protection and Reservation'.
5.The proposal does not comply with the policies and objectives of State Planning Policy 2.5 'Agriculture and Rural Land Use' which seeks to prevent ad hoc fragmentation of rural land.
6.The proposal does not comply with the Commission's Development Control Policy 3.4 'Subdivision of Rural Land' which requires that rural-residential subdivision should not be supported unless provided for by regional and local strategies and the applicable Local Planning Scheme.
7.Approval to the subdivision would create an undesirable precedent for the subdivision of other lots of a similar size in the 'General Farming' Zone of this locality.
The applicant subsequently made application, on 3 November 2009, under s 251(1) of the Planning and Development Act 2005 (WA) to have this decision reviewed by this Tribunal. As part of the review proceedings, the applicant submitted a revised plan of subdivision dated 27 May 2010, which modifies the proposed subdivision. Amongst other things, the visual landscape experts have agreed that the new proposal improves some aspects of screening and the intended view corridors.
Subject land
The subject land is more particularly described as Lot 102 Cathedral Avenue, Parkfield, being the land comprised in Certificate of Title Volume 2633 Folio 997, and is 34.275 hectares in area.
Lot 102 is located 6.5 kilometres north of the Australind Shopping Centre, 200 metres east of the northern end of Leschenault Estuary, and 5 kilometres south of Binningup. Lot 102 shares a common boundary with Lot 100 to the west and another common boundary with Lot 101 to the north, while Cathedral Avenue defines the eastern and southern boundaries of the subject land.
The subject land is predominantly cleared pastures, with an existing house and shed located on the northern portion of the lot. The topography of the subject land is generally flat, but with a slight slope running down towards the Leschenault Estuary. A small elevated crest running in a north-south direction is located centrally within the subject land.
Given its location in relation to the Leschenault Estuary, the land can be affected by two different types of flooding scenarios: (i) tidal and storm surge flooding (from the ocean); and (ii) major river flooding from either the Collie River or the Preston River, both of which rivers flow into the Leschenault Estuary. In fact, a detailed site survey in 2007 confirmed that approximately 78% of the site is situated within the Leschenault Floodplain.
Lot 100, which lies immediately to the west of the subject land, is predominantly samphire and rushes, and forms part of the foreshore area of the Leschenault Estuary. This lot comprises some 36 hectares, of which 20 hectares formed part of the parent lot of the subject land, and was acquired by the respondent in 2006 for the purpose of creating Regional Open Space (ROS). Conservation category wetland is indicated on the subject land's western boundary.
Speaking generally, to the south and east of the subject land there are lots zoned Special Rural and Special Residential, many with zoning indicating landscape protection. Attempts in 2009 to have the subject land similarly zoned failed when the Shire of Harvey (Shire) refused a rezoning application. The Shire has likewise refused to support the proposed subdivision.
Planning framework: regional historical overview
Over the past 25 years, numerous strategic and statutory plans have been formulated, adopted and implemented by both State and local government authorities to guide development and subdivision in this locality. The following chronological table sets out, as agreed by the parties, the principal relevant documents and plans relevant to the subject land, as well as any zoning/land designation provided for or indicated by these various instruments.
| Date | Document | Zoning/Land Designation |
| October 1983 | The Department of Environment and Conservation releases the Conservation reserves for Western Australia as recommended by the [Environmental Protection Authority (EPA)] (1983): the Darling System - System 6, Part II: recommendation for specific Localities. Report 13 | System 6 - Area C66 - recognises the need for further assessment as to the environmental values |
| January 1993 | Bunbury Wellington Region Plan including the Greater Bunbury Structure Plan released for public comment | Area under consideration for Conservation, Scenic Protection and Reservation |
| February 1993 | EPA releases Red Book Status Report (1993) on the implementation of Conservation Reserves for Western Australia, as recommended by the EPA (1976-1984) | System 6 - Area C66 'Leschenault Inlet' states Regional Park recommendation for areas shown on Figure 46. The comments include this note: 'This area is being considered in the Bunbury-Wellington Region Plan which is co-ordinated by the Department of Planning and Urban Development.' |
| October 1995 | Greater Bunbury Structure Plan is endorsed by the WAPC | Area Under Consideration, Scenic Protection and Reservation |
| November 1995 | Bunbury-Wellington Region Plan is endorsed by the WAPC | Area Under Consideration, Scenic Protection and Reservation |
| November 1996 | Shire of Harvey District Planning Scheme No 2 gazetted | General Farming and within an area of Landscape Value |
| August 2000 | Greater Bunbury Region Scheme (GBRS) and Greater Bunbury Region Scheme Environmental Review released for public comment | The draft GBRS reserved the foreshore area of Location 22 as ROS and the balance of the subject land was zoned 'Rural' The GBRS Environmental Review Figure 12 'Existing and Proposed Conservation Estate' identified the subject land as within System 66 - Area C66 Leschenault Inlet. Figure 6 'Landforms and Soils' identified the bulk of Location 22 as being situated over the Yoongarillup land system. Figure 8 'Wetland Management Categories' identified the foreshore area of Location 22 as 'Conservation' category wetland |
| September 2003 | EPA report and recommendation on the GBRS through Bulletin No 1108 | Recommendation that environmental conditions be incorporated into the text of the GBRS. No environmental conditions attached to the subject land, whereas conditions/statements were made concerning the ROS boundary in relation to locations 14 and 7 north of Buffalo Road |
| October 2005 | Minister for the Environment issues Statement No 000697, which outlines the applicable environmental conditions to the GBRS | Environmental Management Plans are required for subdivisions which impact on '[ROS] in the scheme, Crown conservation or nature reserve, a National Park or bushland, waterways, wetlands or other land that may be part of an ecological linkage' |
| 2004 - 2006 | Acquisition of the foreshore area of Location 22 to form Lot 100 | In 2004, the owner of the parent lot of the subject land requested the WAPC to purchase the foreshore area, that is, the proposed ROS identified in the draft GBRS. The foreshore area was acquired by the WAPC and a certificate of title was issued for Lot 102 in 2006 |
| November 2005 | WAPC report on submissions received on the GBRS Environmental Review entitled Volume 3 - Responses to Environmental Issues | Item 20 states, in response to a submission that 'more land on [the] eastern side of Leschenault Estuary should be regional open space' - '… At the very north, where a road reserve is not in place, the proposed boundary alignment generally follows the boundary between the riparian zone of the Leschenault Estuary and the Yoongarillup landform, which is a desirable foreshore boundary alignment |
| December 2006 | State Planning Policy 2.9 'Water Resources' is gazetted | This policy outlines the criteria for determining the desirable width of a conservation buffer to wetlands and estuaries |
| 29 November 2007 | The GBRS is gazetted | Subject land is zoned Rural |
Planning framework: local Scheme
At the local level, and running parallel with the regional planning framework discussed above, is the Shire of Harvey District Planning Scheme No 1 (DPS 1 or Scheme), which was gazetted in November 1996.
This critical instrument presents a complex, if not initially bewildering, set of local planning controls relevant to the subject area and its locality. Significant resources have been expended by the expert witnesses, counsel and the Tribunal in dissecting and applying these provisions. For the benefit of the Tribunal, the parties' experts eventually presented, in plan/overlay form, the location of these various precincts and scheduled areas in relation to the subject land. These plans assisted with our understanding of the statutory text.
We commence with a relatively straightforward matter: an examination of the zoning controls under the Scheme.
DPS 1 currently zones the subject land as General Farming. The Zoning and Development Tables incorporated into the Scheme indicate the uses permitted in the various zones, and the development standards that apply to various uses specified in the table for each zone with a policy statement for each zone.
The relevant policy statement for the General Farming zone is to be found in Tables 27 - 29, which provides as follows:
… [The Shire] intends to encourage these areas to continue to be used for viable large scale farming activity. Council will encourage and promote good farming, animal husbandry and soil conservation. Some limited tourist and recreational activity may be permitted where no adverse effect to the primary agricultural purpose of the zone will result.
The minimum lot size specified in Tables 27 - 29 for 'Rural Pursuit', 'Dwelling', 'Viticulture/Horticulture' and other similar types of activities is 40 hectares.
Next, cl (b) of Pt V of DPS 1 dealing with 'District Scheme Precinct Policies' states that the Scheme Area is to be divided into 'Planning Precincts', and each 'Planning Precinct' is subject to 'Policy Area Statements' which, importantly, indicate the Shire's strategy 'for the future development of that Area'.
The 'Planning Precinct' boundary descriptions and policy statements are contained in Sch 14, while the boundaries are illustrated in Sch 14A of the Scheme.
The subject land is located within the boundaries of 'Precinct Area 1 - Leschenault' found in Sch 14. The 'Precinct Policy Area Statements' for this locality, which, it is to be noted, are set out in DPS 1 itself and not some other instrument, provides as follows (emphasis added):
The general policy for this area is conservation and recreation to the extent [that] that latter activity is sustainable while permitting limited residential development without further degradation to the inlet and environs. To this end it is the policy that:
•A minimum lot size of two hectares for lots south of Crimp Crescent and five hectares for lots north of Crimp Crescent.
•Recreational uses of the Inlet and its perimeter be controlled to confine activity to specific areas on the perimeter of the inlet which can sustain such activity and be properly managed.
•The natural wilderness environment as perceived from the northern parts of the inlet and from Cathedral Avenue scenic drive be maintained by screening urban and semi urban development north of Australind behind a vegetation barrier on the scarp and maintaining rural land between these and the foreshore areas. West of Cathedral Avenue, between Australind Road and Buffalo[R]oad, the land use should be confined to conservation, controlled recreation and low intensity rural uses in the northern part.
•Low intensity tourist development on parts of the better drained soils of Lot 7 Buffalo [R]oad, east of the line of primary foreshore dunes, would be appropriate subject to stringent environmental assessment and ongoing management. Clearing of this area should be discouraged. The eastern side of Lot 14 should be incorporated in the Leschenault Wetland protection area.
•The development of Lot[s] 21 and 24 Cathedral Avenue, Leschenault [now subdivided], should reflect the transitional nature of the land towards large lot sizes, in order to enhance the landscape and environmental qualities of this area. A structure plan is required to be prepared for Lots 21 and 24 Cathedral Avenue, Leschenault, prior to the subdivision of the land. The structure plan should reflect the zoning of the land as Special Residential, Special Use Special Rural and Landscape Protection and [R]ecreation, and show a transition of lot sizes, increasing in size from the southern boundary and being justified in terms of landform, vegetation and landscape impact. Within the 'Special Residential' zone the minimum lot size shall be 4000 [square metres] with an average of 6000 [square metres].
•Provision could be made for a scenic road constructed through Lot 14 linking Buffalo road to Binningup.
•The western portion of Lot 4 Buffalo Road [should] be incorporated into the Leschenault Wetland protection area. Replanting of trees should be encouraged over the remainder of the land to Old Coast Road. Further subdivision should be limited to that compatible with conservation or agricultural purposes.
•South of Buffalo Road, the land between the Inlet and Old Coast Road [should] be considered a conservation area to the Inlet and buffer area to the Goodchild's abattoir which is located just east of Old Coast Road.
•Where there are existing houses and commercial premises west of Old Coast Road, between Dawe Street and Paris Road, along the foreshore of the Inlet, redevelopment to 'low key' tourist development should be considered subject to satisfactory design and environmental safeguards.
Any development proposal is subject to a catchment management plan incorporating nutrient run-off and drainage management programme.
In addition to the general Policy Statements for this particular area, the following requirements apply to the Cathedral Avenue area, which is bounded by Buffalo Road to the north, the road on the peninsula to the west, Elinor Bell Road to the south and the public open space ridge as identified on the Scheme Map to the east.
•The zoning of the land shall be 'Special Use Special Rural and Landscape Protection', which implies special conditions. It will furthermore ensure that the scenic rural character and lifestyle valued by the people are retained. (Specific development criteria for this particular section of Precinct Area 1 are outlined in Schedule 4 - Additional Requirements for Special Rural Zones - Area 4 - Cathedral Avenue - Leschenault). Furthermore, the zoning applied will ensure protection of the estuary and its associated flora and fauna.
Importantly, Sch 4, referred to immediately above, deals with 'Additional Requirements - Special Rural Zone'. 'Area 4' thereof provides detailed planning controls in respect of a range of land use activities and related matters in the Cathedral Avenue, Leschenault locality.
Clause (a) of Pt V provides that the precinct policies shall be subject to cl 11.6 of the Scheme, which is headed: 'Power to Make Policies and Precinct Planning Statements'.
Under this provision, the processes involved in adopting, amending and revoking policies and 'Planning Precinct Policy' area statements are specified, as well as an obligation to 'take into account the provisions of the Policies and Precinct Policies and the objectives which the Policies were designed to achieve before making [a] decision in respect of any application for planning consent and [the] decision shall be consistent therewith' (cl 11.6.7).
In addition, cl 8.4 of the Scheme provides that:
In considering any application for development, rezoning or subdivision in the rural areas of the Shire, Council shall be guided by the various Planning Precinct Policy Area Statements, as outlined in Schedule 14.
Schedule 1 and the Scheme Maps identify 'Places of Landscape Value' within the Scheme Area. 'Places of Landscape Value' are considered to be of historic, architectural, scientific, scenic or other value and 'should be retained in their present state, or restored to their original state, or to a state acceptable to the Council' (cl 9.1.1).
There are two 'Places of Landscape Value' that are relevant to this application, being:
1.No 24 - 'Coastal Lakelands' (land generally west of Old Coast Road, Lake Preston) which is described as '[a]n area of significant landscape value including the Leschenault Inlet and the Indian Ocean coastline'; and
2.No 15 - 'Cathedral Avenue' (Scenic Drive along the eastern side of the north of Old Coast Road to Buffalo Road) which is described as an '[a]venue of paperbarks and other native trees lining an original section of the Old Coast Road'.
Specific policies relating to 'Places of Landscape Value' are outlined in Sch 2 of the Scheme, and the policy provisions relevant to the subject land are contained in cl 2.1 'Area 1 - Coastal Lakeland'.
In addition, cl 9.1.4 of the Scheme states:
Subdivision proposals within Places of Landscape Value should reflect the high quality rural landscape of the area[,] and lots less than 40 [hectares] would not be supported by Council.
The Scheme also seeks to protect Cathedral Avenue by requiring a 'Building Line Setback' of 200 metres where practicable, and for narrower sections, the setbacks are to be such that buildings are located at the base of the Leschenault Escarpment (cl 8.1(a), item 13).
Subdivision decisions with respect to rural land, such as here, are guided, if not controlled to a large extent, by two specific policies made by the respondent: (i) State Planning Policy 2.5 'Agriculture and Rural Land Use Planning' (SPP 2.5); and (ii) Development Control Policy 3.4 'Subdivision of Rural Land' (DC 3.4). These policies contemplate significant interaction with local schemes, such as DPS 1, with respect to the orderly and planned fragmentation of rural land, particularly with respect to 'closer settlement' thereof.
Issues
Having regard to the regional and local planning framework set out above, the context in which the subject land is found, the reasons for the respondent's refusal and the evidence led by both parties in the review, the Tribunal summarises the relevant issues for determination as follows.
Application of the planning framework
1)The consistency of the proposed subdivision with the zoning of Lot 102 as General Farming under DPS 1.
2)The consistency of the proposed subdivision with the Precinct Policy Area Statement for 'Precinct Area 1 - Leschenault' in Sch 14 of DPS 1.
3)Consistency of the proposed subdivision with the designation of Lot 102 under any regional instrument.
4)Whether approval of the proposed subdivision would constitute ad hoc fragmentation of rural land for the purpose of SPP 2.5 and DC 3.4.
5)Whether the proposed subdivision would set an undesirable precedent for the further subdivision of surrounding rural lots that is inconsistent with the current zoning of these lots and the GBSP.
Visual landscape assessment
6)The impact of the proposed subdivision and subsequent development on the scenic amenity of Cathedral Avenue and the Leschenault Estuary.
Environmental considerations
7)The environmental impact of the proposed subdivision and subsequent development on the Leschenault Estuary and the wetlands proximate to or within Lot 102.
8)Whether the proposed subdivision, which would permit five additional residential dwellings on the subject land, should occur in a locality which is close to a significant mosquito breeding area.
Conditions
9)What conditions should be imposed if the Tribunal is of the view that the proposed subdivision should be approved.
We turn to consider the evidence and to state our conclusions in respect of each of these identified areas.
Discussion of the case: the impact of the planning framework
Mr Frank Scibilia gave expert planning evidence on behalf of the respondent.
The essential thrust of Mr Scibilia's evidence, in summary, was that the textual indications in DPS 1 (even allowing, as he noted, that the 'the structure of the text' was 'poor' in places), in the context of other zonings, the pattern of surrounding lot development and the planning history of the locality, all strongly suggested that Cathedral Avenue (itself expressly identified as having relevant heritage/landscape values) was a logical dividing line between land (including the subject land) designed for rural pursuits - also identified for natural and landscape protection - and other land to the south and southeast which is or might be developed in an orderly way for rural residential activities. Mr Scibilia asserted that, relatedly, other State planning policies and instruments (for example, the regional scheme), in effect, dovetailed with this interpretation to produce a strong case for refusal of the proposed subdivision.
The central plank of the applicant's expert planner, Mr Lex Barnett, was his opinion that, on a reading of DPS 1's actual text, the intended future zoning of the subject land was to be, in effect, Special Rural which contemplated the possibility of rural residential living, and at the lots sizes proposed by the applicant: see the final paragraph of Area 1 in Sch 14 (reproduced above) read with Sch 4, Area 4.
Although much of what Mr Scibilia says on this point is reasonable and has a logical flavour to it, and may even be a desirable outcome, the problem remains that the relevant policy area statement does, with reasonable clarity, albeit after not a little forensic work, expressly point in the future direction identified by Mr Barnett. In our view, it is so drafted that this outcome could not be said to be either uncertain or unintended. DPS 1 has been given the force of law and must be implemented accordingly. This is so despite Mr Scibilia's speculation concerning possible historical drafting errors in the Scheme.
We are also persuaded that the specific items in Precinct Area 1 in Sch 14 are a more reliable guide to the Scheme's intended meaning over the, more perhaps generalised, statements identified and relied upon by Mr Scibilia (see, for example, the last sentence of dot point 3 in the Leschenault Precinct Policy Area Statement). Again, where there may be an apparent conflict with other parts of the text of the Scheme (for example, see cl 9.1 with respect to subdivision proposals in areas of landscape value), the specific zoning future mapped out for the locality should have priority in the application of any hierarchy of planning values. Cf the discussion in Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232 at [35] - [36].
Moreover, this position is not relevantly contradicted by the actual text of any other State planning instrument, whether statutory or administrative, which could, on this specific point, significantly control the planning outcome on the review. With the greatest respect to Ms Ide, who appeared for the respondent, generalised indications and aspirational language in such instruments, particularly aged instruments, cannot relevantly supersede a planning scheme given the force of law which, by the respondent's own policies, is made central to the planning decision to be made.
Thus, the applicant's position could not be said to be, on its face, inconsistent with orderly and proper planning for the subject land. And, importantly, the Tribunal's findings on this critical issue will have major implications for the balance of the respondent's case.
So, in respect of SPP 2.5 and DC 3.4, there is nothing, in our view, in those policies which is so inconsistent with the proposed subdivision, being a subdivision contemplated by DPS 1, which would warrant refusal of that subdivision. True it is that DPS 1 neither uses the precise language of, nor does it follow the precise pattern of, instruments recommended by these policies in respect of planning for closer settlement of rural land. And, as has been demonstrated above, the relevant language of DPS 1 is hardly a model of clarity or exactitude. However, conceptually, what is foreshadowed in those State policies (that is, the planned conversion of rural land to rural residential land) is essentially prescribed by the provisions of DPS 1 discussed above. Shortly put, what is proposed by the applicant is contemplated by the Scheme.
Rezoning has not taken place yet, but that absence will not be fatal as regards a subdivision decision: see, for example, Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 535.
We would therefore uphold Mr McQueen's contentions for the applicant on this point, and we would not refuse subdivision because of any alleged inconsistency with the planning framework.
Discussion of the case: the scenic amenity of Cathedral Avenue and the Leschenault Estuary
It is common ground, and evident from the planning framework, that the protection of the locality's visual landscape is a particularly relevant factor in determining whether subdivision should be permitted and, if so, on what conditions.
The respondent contended that the development arising from the proposed subdivision would have a significantly adverse impact on key view points from Cathedral Avenue and the Leschenault Estuary.
In the course of the hearing, the Tribunal was taken to the location of the subject land and was invited to inspect, amongst other things, the views from various key points.
In general, the subject land is viewed predominantly by motorists and cyclists travelling along Cathedral Avenue, but also from Buffalo Road and the Leschenault Peninsula. Views of the site when travelling south along Cathedral Avenue are predominantly rural, with glimpses through strands of Tuarts and Peppermint trees to the mid ground views of the Leschenault Estuary and Peninsula. When travelling north along Cathedral Avenue, the views are rural but there are, generally the further north one goes, rather less glimpses of the Leschenault Estuary and Peninsula.
The Tribunal had the benefit of expert evidence from Ms Stephanie Clegg, a senior environmental planner of the Department of Planning, called on behalf of the respondent, and Mr David Kaesehagen, a consultant called on behalf of the applicant. Both experts have considerable experience in landscape and visual impact assessments.
Both experts agreed that the appropriate visual management goal was to protect and maintain the visual landscape character. They gave their joint evidence structured around the following eight interrelated issues:
1)Significance and values of the northern Leschenault landscape.
2)Landscape character of the northern Leschenault landscape and the subject land.
3)Visual management objectives and key views.
4)Landscape changes likely to result from the proposed subdivision.
5)Proposed mitigation strategies.
6)Impact of the subdivision on landscape character and views.
7)Visual management objectives.
8)Degree of compliance with relevant policies, plans and guidelines.
On the first issue, the experts agreed that the northern Leschenault Peninsula landscape, which is comprised of a water body, dunes and rural flats (including Cathedral Avenue), is of regional significance. However, Ms Clegg expressed the view that the landscape could probably be considered at State level significance, as it was similar to other landscapes, such as the 'Wonnerup area and Lakes Preston/Clifton', both of which she considered to have State significance.
As to the second issue, Mr Kaesehagen prepared a visual assessment report for Lot 102 and identified the following six 'landscape character units' relevant to the subject land and its locality:
i)Coastal dune (Leschenault Peninsula).
ii)Coastal foreshore.
iii)Leschenault Estuary.
iv)Rural flats.
v)Leschenault ridge.
vi)Residential.
Ms Clegg agreed in principle with this analysis, apart from the reference to a residential component, as this tended to imply 'dominance of [the] built form' in areas of woodland vegetation.
On the third issue of visual management objectives and key views, the experts substantially agreed on all key views and, in effect, on the hierarchy of views, but disagreed on the degree to which any development should or could be 'inevident' or blended.
Turning to the issue of landscape changes that were likely to result from the development that flowed from subdivision, the experts agreed in substance on the built form (in effect, five additional dwellings in three pairs), on the '[p]ossible loss of some mature remnant trees', on landscape planning and on aspects of screen planting. Where they disagreed was on the likelihood of screen planting being successful and the behaviour of residents whose views may be affected. The related issue (issue 5: 'Proposed mitigation strategies') reflected a similar division of opinion, with the experts largely agreeing on the potential benefits of mitigation strategies and visual blending, but with Ms Clegg expressing concern as to the practicalities of implementing the proposed strategy 'particularly in regard to maintaining view corridors'.
The sixth issue concerned the impact of the proposed development on landscape character and views. The experts agreed that the 'simple rural character' would change because of the development. There would be some positives and some negatives flowing from the development and, as has already been mentioned, the experts agreed that the applicant's modified proposal improved some aspects of screening and certain view corridors. However, Ms Clegg particularly noticed that the proposed dwellings would 'visually dominate the key views from Buffalo Road and Penisula Road'.
These disagreements were fleshed out in relation to whether certain visual management objectives were met in relation to particular key views. The experts disagreed on whether blending could be achieved in relation to views from Buffalo Road and Penisula Road, and on the importance of water views from Cathedral Avenue: Ms Clegg arguing that there should be 'no loss of the extent of water visible from Cathedral Avenue' and Mr Kaesehagen countering with the notion that the view corridors were 'sufficient to carry the visual experience of water'.
The final issue dealt with the extent of compliance, so far as was relevant, with those parts of the planning framework that touched upon aspects of the visual landscape. The differences already noted above between the experts were mirrored in the experts' respective opinions as to whether the blending was contemplated or whether the goal should be 'inevident' development.
We have already given our views above on the central question of whether the proposed subdivision is consistent with the planning framework. We have held that it is and, in particular, that DPS 1 contemplates rural residential development of the type likely to flow from subdivision. It follows that on the subsidiary question of visual impact, the question will inevitably turn to whether there can be reasonable accommodation between the visual landscape values identified by the experts and the development contemplated by the Scheme.
We hold that there is. We prefer the evidence of Mr Kaesehagen where there is any conflict between the experts, as his evidence and his solutions tend to come from that same starting point; they also strike us as otherwise practical, and aimed at achieving all of the broad policy objectives of protection of the visual landscape championed by Ms Clegg. As the conditions of subdivision and, later, development will need to be negotiated, the opportunity exists for the parties to reach a sensible physical blending of the development to the maximum extent practicable, a course that the applicant has already embarked upon with its proposed Design Guidelines.
Discussion of the case: the impact on the environment
We turn to the environmental impacts of the proposed subdivision. In summary, evidence was presented on these issues:
i)Land capability and land use potential for rural and rural residential purposes.
ii)On-site effluent disposal.
iii)Nutrients associated with land use and the risk of nutrient export to the adjacent conservation category wetland.
iv)Drainage.
v)Wetlands within Lot 102.
vi)Shallow groundwater, flood risk, and flood height.
vii)Mosquitoes and mosquito management planning.
The applicant presented a wide-ranging environmental and land use capability assessment for Lot 102, conducted with the aim of determining the key measures of suitability for rural residential land use.
It is clear from the voluminous material referred to in the evidence before us (some of which is referred to in the chronological table above), that the subject land nests in an environmentally and ecologically sensitive area.
We commence with a review of the environmental issues to do broadly with the topic of water.
Water
The applicant's environmental assessment made technical recommendations across a range of subjects, including dealing with onsite effluent disposal from new residences in the planned development. By the stated land capability criteria for septic tanks in rural residential developments, with regard to constraints in soil absorption, water logging and microbial purification, Lot 102 was assigned a land capability class of '3 fair'.
This was in recognition that the area had 'moderate physical limitations significantly affecting productive land use and/or risk of degradation'. Careful 'planning and conservation methods [were] required'.
To address these limitations at each new rural residence, it was proposed to install aerobic treatment units (ATUs) and inverted leach drains. These would incorporate an impermeable liner to the drain and amended soil medium with the capacity to process and absorb phosphorus from the treated effluent.
The Tribunal heard evidence that the applicant's environmental assessment had highlighted that there was a high risk of acid sulphate soils (ASS) being present on-site and that there was the potential for the development of the site to cause acidification of the soil and groundwater. These soil and associated problems could be avoided by raising the building envelopes with suitable fill, while any trenching and excavations planned for any reason would require an ASS management plan.
Written advice on the proposal from the Department of Water reiterated certain catchment management objectives to the effect that there should be no net increase in nutrients discharging into the estuary. The Department of Water's advice agreed that ATUs and amended soils had the capacity to reduce phosphorus discharge, although not to strip nitrogen from domestic effluent.
In his evidence on land capability, Mr David Coremans, an environmental scientist engaged by the applicant, expressed his understanding that the problem of nitrogen discharge from domestic effluent was less than that associated with phosphorus, because there were more natural pathways for nitrogen that was discharged into both soil and water to be taken up, including by vegetation growth.
In the joint statement arising from the conferral between Mr Scott Dandridge, Principal Environmental Health Officer for the Shire, and Mr Coremans, engaged on behalf of the applicant, the experts agreed that the required separation distance from the leach drain to groundwater was guided by the draft Country Sewerage Policy.
This instrument prescribed a minimum of 0.5 metre between the natural ground surface and the highest known groundwater level. There was also agreement that the higher, central ridge area of the subject land was best suited to effluent disposal by virtue of clearance from water logging and flooding constraints, the natural soils of the ridge being inherently incapable of satisfactory on-site effluent disposal. Engineered solutions, including amended soils and the use of ATUs, were permitted within Department of Health approved specifications for the treatment and disposal of effluent on-site.
With regard to treated effluent disposal, there was agreement on: the surface irrigation method; the required area (150 square metres); the minimum soil base level above groundwater (0.5 metre); and that the Phosphorus Retention Index of 20 required for a sprinkler irrigation site implied that 300 450 millimetres of permeable amended soil would be needed to provide the recommended irrigation surface.
It was also common ground that regular maintenance for ATUs was essential to maintain their effectiveness, and at intervals longer than monthly, perhaps quarterly, and according to the brand of ATU and the maker's maintenance regime. The Shire's possible difficulties in controlling any subsequent unauthorised modifications or use of effluent water or disposal systems after installation were also acknowledged.
Importantly, the question also arose of the impact on total nutrient discharge from such a site by potentially changing the land use from a rural commercial grazing operation to a rural residential subdivision.
Mr Tim Johnson, an agricultural management consultant, stated that recent cattle management at the site involved very high stocking rates, maintained beyond the grazing of onsite rain fed pastures by hand feeding of hay and grain. In general, a change of land usage from commercial grazing to rural residential involved the loss of economic drivers on commercial stocking pressures, but usually resulted in some form of grazing use continuing on the individual rural residential lots. With lower stocking rates, less supplementary feeding and animal manure output, a lowering of net nutrient discharge could be expected.
Mr Johnson agreed with advice from a desktop assessment by the Department of Agriculture and Food indicating moderate capability for grazing on Lot 102, while acknowledging winter water logging constraints which reduced the effective area of productive grazing land. Those constraints involved the low-lying margins to Lot 100 and the conservation category wetland immediately to the west, plus two small listed wetlands which extend from the south across the lot boundary.
In short, there is nothing in these various technical assessments and solutions which, by themselves, would warrant refusal of the subdivision. These matters go to the question of appropriate conditions.
Estuary wetland buffer and flood risk
The applicant's environmental assessment indicated, as has been mentioned, that 78% of the lower-lying land within Lot 102 was currently mapped within the Leschenault flood plain. The assessment detailed the attributes of Lot 102 and the spatial overlaps with the Conservation Category Wetland (CCW) and an identified Environmentally Sensitive Area (ESA).
The Department of Environment and Conservation's database of ESAs indicates that the study area included part of an ESA. This ESA was consistent with the location of an identified wetland and an associated 50 metre buffer. Thus, the ESA effectively defines the CCW, plus a 50 metre buffer. We note that such buffers are designed to protect a site from potentially deleterious impacts while helping safeguard and maintaining ecological processes and functions of the wetland.
We note that the CCW is 481.5 hectares; the portion of this wetland within the study area was 0.4 hectare.
The Leschenault Estuary is located west of the study area. Due to its conservation status (that is, the CCW) and the environmentally sensitive nature of the area (that is, the ESA) a foreshore reserve is required for its adequate protection. Lot 100 immediately to the west of Lot 102 effectively acts as this foreshore reserve; however, given the CCW status of the land, the potential inclusion of certain species within the CCW and the proximity of Lot 102 to the estuary itself, a 50 metre buffer zone to the CCW should be adopted, consistent with the existing ESA. We note that, in this portion of the study area, building envelopes were not recommended.
Regarding flood risk, the Tribunal received the evidence of the conferral between Mr Coremans as an expert witness engaged by the applicant and, for the respondent, Mr Richard Bretnall, the Manager of Water Resource Assessment at the Department of Water.
They agreed that the proposed development would not detrimentally impact upon the existing flood regime of the general area. They also agreed that, in reviewing the 1981 regional flood study of the Leschenault Estuary, Collie River and Preston River for its implications as to flood risk, government advice on potential sea level rises should be taken into account, and on a timescale according to building life expectancy, such as 50 years. There was also agreement that in calculating flood levels and the required flood freeboard level for planned residences, the impact of wind setup and wave run-up under projected sea level rises should also be factored in.
The two experts further agreed that with the building envelopes located on the 'central ridge' made up by Spearwood system 'S4a' soils and above, the current 100 year average recurrence interval (ARI) contour of 1.92 metres AHD would be acceptable. Dwellings of pole type construction located on the central ridge would negate the need for filling, plus suitable erosion protection, to achieve the required minimum floor level of between 2.5 and 3.0 metres AHD.
The Tribunal accepts the expert evidence to the effect that onsite environmental issues of flood risk, nutrient discharge and protection of the wetland ESA and the foreshore reserve could all be satisfactorily managed; these matters therefore go to the question of suitable conditions.
Mosquitoes: environmental aspects
As Principal Environmental Health Officer for the Shire, Mr Scott Dandridge, gave the Tribunal background information about the area's mosquito problems.
He has had responsibility for mosquito control in the Leschenault Estuary for the Shire since 1989 and stated that the northern and eastern shores of the estuary adjacent to Lot 102 were tidal-driven salt marshes offering ideal mosquito breeding habitats. He said that, since at least 1986, researchers had been monitoring larvae numbers, adult mosquitoes and virus activity at freshwater sites on land managed by the Department of Environment and Conservation (DEC) at the northern end of the estuary and the peninsula.
In 2006, officers from the Shire had intensively trapped adult mosquitoes near monitored breeding sites close to the western end of Buffalo Road, as well as in vegetation at the eastern end of that road, near to the northern boundary of Lot 101. The mosquito catch was very high at both sites, but more than three times higher at the eastern site closer to Lot 102.
Mr Dandridge also described an associated capture-recapture experiment using marked mosquitoes released at both capture sites the same morning in October 2006. Marked mosquitoes released at the eastern site were subsequently recaptured 1,800 metres in a southerly direction, at a point off Lofthouse Road, east of the southern extent of Lot 102.
Mr Dandridge drew attention to an area of up to 20 hectares within Lot 100 adjacent to the western boundary of Lot 102 which was liable to inundation as the nearest part of the 'massive area' of this mosquito breeding site. In Mr Dandridge's experience, the Tuarts and Peppermint trees along the northern boundary of Lot 101 were excellent harbouring locations for mosquitoes and a base from which mosquitoes dispersed in order to seek a blood meal. It could also be assumed that the Peninsula was a mosquito refuge of ideal habitat and plentiful blood meals in the kangaroo population. Mosquitoes thus were known to disperse from the Leschenault Estuary towards the subject land using the terrestrial corridor adjoining Buffalo Road.
In regard to the status of Ross River Virus (RRV) and the Barmah Forest Virus (BFV), Mr Dandridge quoted Department of Health data showing 814 notified cases of RRV in the Leschenault area over the last 15 years. RRV was most active between September and May, especially in years when either above average rainfall or unusually high tides created extensive mosquito breeding habitats.
In a letter to the respondent, dated 17 November 2008, in relation to the proposed subdivision, the Department of Health stated that the location of the proposed lots would be such that future residents were likely to be regularly exposed to RRV and BFV vector mosquitoes.
In witness statements from experts engaged on behalf of the applicant, namely, Mr Andrew Mack, an environmental consultant with experience of mosquito management plans, and Mr Paul Zahra, an environmental health consultant, it was proposed that the preparation and implementation of a Mosquito Management Plan (MMP) would be required, in a similar way to that imposed on the Port Geographe development.
In his witness statement, Mr Zahra outlined both the content of another MMP, imposed as a condition of development at Coodanup on the Serpentine River, and a qualitative risk assessment matrix that demonstrated the level of risk for this development. In Mr Mack's view, an MMP would set out both direct and indirect methods to minimise the interaction between humans and mosquitoes. Direct methods would include physical controls, such as spraying, runnelling and wetland management, and indirect interventions would include education and physical controls associated with the properties and their built structures.
The Tribunal received further evidence on issues associated with mosquitoes, mosquito management and public health arising from a joint conferral of witnesses. Contributing on behalf of the applicant were Mr Mack and Mr Zahra, and for the respondent Mr Dandridge and Dr Michael Lindsay, Managing Scientist of the Environmental Health Hazards Unit in the Department of Health.
The conferral identified six interrelated issues which the experts explored. These issues were as follows:
1)That there will be construction of new residences within close proximity of known, extensive mosquito breeding/habitats.
2)That the mosquitoes were known carriers of RRV and BFV.
3)That the combined effect of issues 1 and 2 would pose amenity and health risks for future residents of the proposed development.
4)That there is currently limited management of mosquitoes in the immediate vicinity of the proposed development.
5)That mosquitoes in the immediate vicinity of the proposed development have a dispersal range of up to 3 kilometres.
6)Whether the mosquito management regime required for the proposed development would receive environmental approval; whether it would be effective; and how it would be resourced.
Mr Zahra and Dr Dandridge jointly outlined requirements under the Department of Health's guidelines for the elements of a MMP. Beyond guidance regarding the built form, the MMP would need to include: measures for appropriate notices on new property titles; planning to guide people's choice of clothing; the use of insect repellents; suitable behaviour in respect of residential and public outdoor activities; and signage for public places. Land use planning was included in the guidelines.
In response to questions from counsel for the applicant, Mr Mack considered that an MMP for the area would address management options for both the natural and built environments and would have a significant effect; however, the question remained whether the effect would be sufficient. Mr Mack emphasised that preventative measures taken at and around the built form were a part of an MMP; Mr Zahra pointed out the difficulties in measuring their effectiveness.
With regard to the potential for runnelling, Mr Dandridge confirmed that this was used elsewhere in the Shire, and that he had conducted investigations for runnelling suitability on Lot 100 close to Buffalo Road but that this showed little promise. Only clay soils with an appropriate slope were well-suited to runnelling. The sites he had studied on Lot 100 did not have the required slope. Using the necessary machinery for runnelling trials would present a risk flowing from disturbing acid sulphate soils, as well as damaging samphire cover and other important vegetation on the salt marsh.
Dr Lindsay was also of the view that this area was not a good prospect for runnelling in light of certain site characteristics noticed from a fouryear long study involving topographical analysis of runnelling potential across 32 priority sites in the Peel region.
With regard to mosquito control programs, Mr Dandridge's experience was that the only successful method to control larvae was the aerial application of larvicide by helicopter. Along Lot 100, which is ROS, up to eight aerial treatments of larvicide have been undertaken per season by the Leschenault Mosquito Control Group, which operates under a cost-sharing arrangement between the Department of Health and the three local governments affected. In accordance with the policies of the Conservation Commission, no aerial treatment takes place on Leschenault Peninsula and its salt marshes around the northern part of the estuary, as the area is a 'Class A' Nature Reserve.
Dr Lindsay drew attention to the unsuitability of dense wetland vegetation for any future larvicide control program around the Leschenault Estuary delivered by aerial application. Dense rushes and other vegetation would make it difficult for aerial applications to reach parts of the water surface and the target mosquito larvae. Another difficulty lay in that there was nothing to indicate that nontarget species would not be not adversely affected by the process. The combination of vegetation and unsuitability for runnelling also limited the prospects of using Bacillus thuringiensis israelensis (BTI) toxin, which Mr Dandridge described as a very effective control agent for local use in runnels and drains. However, as Dr Lindsay explained, this also involved helicopter application and levels of expense well beyond what might be anticipated from a developer's contribution.
The Tribunal asked the experts to consider the Biting Insects Code taken from the Caloundra City Plan 2004 (Qld) as an example of a framework for decisionmaking in development assessment involving mosquitoes. Mr Mack responded that he considered this approach from Southern Queensland as one that looked at management through a number of measures, by not increasing the risk through the actual proposed development and ensuring that management measures actually reduced the risk.
In his role, and with the benefit of continuing involvement in national level developments in mosquito control, Dr Lindsay was of the view that:
… the reality is very different from the intent. South-East Queensland generally is the mosquito control capital of Australia [sic] because of planning decisions that have allowed for very substantial residential subdivisions in close proximity to very extensive saltmarsh mosquito habitat and biting midge habitat, so local governments in South-East Queensland and the state governments [sic] spend millions of dollars every year controlling mosquitoes … budgets that just aren't available for mosquito management in smaller communities in the south-west of WA. (T:51,52: 2.6.10)
In response to questions from counsel for the respondent, Mr Dandridge also commented on the problem of how any additional mosquito control might be funded. He said that while the Shire of Busselton has a contributions scheme for mosquito control, there is no special area rate charged anywhere in the Shire. The local charging of levies for control programs tended to raise public expectations that at least the amenity problems would either be solved or reduced. It was the Shire's practice to reduce mosquito problems where this was practical to do so. Mr Dandridge emphasised that, with dense larval populations at this site (up to 100,000 larvae per square metre), even if 90% effectiveness could be achieved from a larval control program implemented over the whole area, this would still result in 'massive numbers of adults in the air' and may not therefore be of any practical benefit.
Dr Lindsay stated that public pressure on the Department of Health was driven by amenity concerns more than for disease prevention. Dr Lindsay also reported that data from a three-year trial for an insect growth regulator at the Vasse-Wonnerup Estuary was not looking positive.
Dr Lindsay's experience was that mitigation measures under mosquito management programs and MMPs were generally failing to reduce both complaints and risks throughout the region. In his view, the MMP devised for the Port Geographe development had failed to have relevant impact on development designs, with the Department of Health having been consulted to clear the MMP, but not its implementation as a condition. He understood that developer funding had since been withdrawn so that there was now no implementation mechanism.
Dr Lindsay emphasised that national and international experience, including high levels of investment in mosquito control in southeastern Queensland, was to the effect that changing the wetland environment was the only effective means of management. He said that, for sites such as the subject lot:
... [Y]ou can't go and fill in the wetland or drain it to remove the mosquito breeding habitat, so you have got to find solutions that are put forward, such as [the] built form, et cetera, which really tinker at the edges and don't make a measurable difference to the impact of amenity and risk. (T:52: 2.6.10)
Dr Lindsay referred to the situation at Lake Goegrup at Mandurah as one of the most intensively treated mosquito management areas in the State, where there was evidence that both the incidence of infection and amenity complaints increased as distance to the mosquito breeding sites decreased and, in certain years, there was still a very substantial impact on amenity.
While the experts' conferral conveyed some agreement that notifications on title could provide clear warnings and contribute to public awareness - working alongside signage and public education, Dr Lindsay cautioned that even with notifications, members of the public may underestimate the severity of the problem and then demand action from the authorities. The experts concluded that:
It was agreed by all parties that it was a misplaced and impractical expectation that the mosquito problem would go away.
For different reasons, Mr Dandridge and Dr Lindsay were both inclined to the view that land use changes which reduced or removed a population of cattle from the subject land were likely to increase the local risk of virus transmission to people. This might be either by the reduction in the ready availability of non-human blood meals on Lot 102, or through an expected increase in pasture and vegetation on the site, serving to increase the macropod population reservoir, thus amplifying hosts of RRV.
The applicant proposed that a larvicide program extending to the 'Class A' reserve west of Lot 102 could be implemented on the Leschenault Estuary, and that runnelling may be possible.
Mr Dandridge emphasised that, with regard to the potential application of larvicides used in other salt marshes and wetlands, no proposal or application had been put to the DEC to undertake any form of mosquito control program, but that there was nothing to suggest that a wider larvicide control program would be permitted around this site.
The respondent's witnesses outlined the pattern of disease notification through the Leschenault area. Dr Lindsay referred to overlay data analysis of the location of RRV infections. This indicated between a six and 11 times higher probability of infection among the subpopulation living 12 kilometres from high risk salt marshes. Mr Dandridge added that insect dispersal studies showed that the closer people are brought to mosquito populations, the higher the risk of being bitten. In MráDandridge's evidence, he emphasised that Lot 101 was by far the largest mosquito site in the Shire. Mr Zahra agreed that his initial risk assessment of a low likelihood of exposure and minor consequences was based on the broader population of the district and should be considered in the context of Lot 102. In Dr Lindsay's view, the likelihood of exposure was at least 'likely' and the consequences of infection were 'major'.
With regard to general public health policy, Dr Lindsay reiterated that his department did not support development in very close proximity to very high risk zones. He also stated that it would be irresponsible for development to proceed over areas for which there is no current prospect of risk reduction from an already existing high level of risk. From a public health perspective, residential development was not appropriate, due to the level of risk of virus exposure to future residents, a lack of effective mosquito management strategy for the northern Inlet regions, and substantial environmental constraints. In this regard, residential development should only be considered if environmental approval was obtained from all relevant authorities to undertake whatever was necessary to ensure effective management.
However, Dr Lindsay agreed with Mr McQueen's suggestion that there may be no precedent for a subdivision refusal in the south west as a result of opposition from the department on public health grounds.
In response to a question from the Tribunal about climate change, Dr Lindsay suggested that the likely impact of temperature changes at a south west tidal site was complex and difficult to predict, with both positive and negative factors for mosquito populations. He said that:
From the modelling that I have seen, my impressions or my opinion would be that it would substantially increase the areas - the breeding sites for mosquitoes at the northern end of the estuary … (T:76, 77: 2.6.10)
However, he also went on to explain that modelling research efforts had reached:
... [the] conclusion that [it] is extremely complicated and so there's nothing definitive about it. There will be aspects of mosquito born[e] disease transmission cycles that may well be enhanced by climate change … there are positive[s] and negatives and it's something that the Department of Health and certainly academics around Australia strongly believe needs to be closely monitored, the potential for arrival of exotic mosquitoes and their establishment under different climatic conditions is a concern …
Rising sea levels and estuary flood risk were also specifically addressed both in a policy sense and as an important on-site factor in the witness conferral between Mr Bretnall and Mr Coremans. Mr Dandridge also commented that the Boxing Day tsunami provided an example of the impact of higher tides in the Leschenault Estuary, in that this event flooded areas not normally reached by high tides and created new mosquito breeding sites.
We sum up the expert evidence to this point.
The experts held similar views that mosquito management programs and MMPs can have an effect in reducing disease risk, but there was otherwise little agreement between them regarding the assessment of disease risk, the effectiveness of management and control measures likely to be available in this case, and the extent of possible benefits if control measures were undertaken.
The Tribunal therefore accepts the applicant's submission to the effect that a MMP could assist in limiting human interaction with mosquitoes. But to what extent, if any, implementing such a plan would actually reduce mosquito impacts on amenity or reduce the disease risk were not demonstrated, as Dr Lindsay's evidence indicated.
The Tribunal generally prefers the body of evidence provided by the respondent's experienced specialists, who not only conveyed interstate and regional knowledge, but also advice on the lengthy ongoing mosquito studies, trials and monitoring of the northern Leschenault Estuary's mosquito breeding sites and populations. That body of evidence indicates that the subject land is sited at the front line of dense and recurrent infestations by mosquitoes carrying arboviruses (such as RRV).
Increased mosquito density increases the likelihood that a person will be bitten and, hence, this affects the risk of contracting a mosquito-borne disease. There are likely to be considerable amenity problems and not insignificant public health risks to any present or future population of residents, however small in number.
The Tribunal is not persuaded that effective and appropriate mosquito control measures are currently available for implementation around tidal and freshwater conservation wetlands adjoining Lot 102. These measures would need to significantly reduce what is known to be, at times, a very dense population of mosquito larvae and over a wide area. However, the natural features of the site, combined with local government and State priorities for mosquito control, infer only slim prospects for an effective control program being funded or conducted, either experimentally or in perpetuity.
There is also a clear indication that conventional approaches to control, such as larvicide treatments, runnelling or other wetland engineering, should be avoided as incompatible with the status of a 'Class A' reserve. Thus, the Conservation Commission and DEC have both indicated that such activities for mosquito control have the potential to jeopardise both the habitat and biodiversity values of the reserve, and the wetland habitats which support protected migratory species, and otherwise threaten the food supply for both Leschenault commercial and recreational fish populations.
The Tribunal is satisfied that currently there is no realistic prospect that the proponent, the Shire and the other district and State authorities have either the intent or the capacity to plan to attempt control of the northern Leschenault Estuary mosquito population.
It is of course possible, as we have indicated, that implementing a MMP for Lot 102 could address amenity impacts and public health through the built form, as well as educating for appropriate behaviour. Otherwise, in accepting the evidence from Mr Dandridge and Dr Lindsay regarding the lack of feasible control measures, the Tribunal is satisfied that there is no realistic prospect of the Shire changing its view that the mosquito problem at Lot 102 is effectively unmanageable.
Discussion of the case: mosquitoes and planning principles
The significance of the mosquito problem as a factor in the determination of the application must be, at least initially, guided by consideration of any relevant policy or principle (to the extent that they exist) under which disease risk, or risk to amenity or to some other community value, can be assessed.
Thus, SPP 2.5 indicates that '[r]ural settlement opportunities should be provided if sustainable and of benefit to the community'.
Arguably, the circumstances of this site include the lack of any real prospects for effective mosquito control in the shorter term, as well as further uncertainties associated with rising sea levels, future tidal and storm flooding, and associated consequences of climate change, resulting in higher RRV risk, new vectors, or the possibility of new virus mosquitoborne disease risks around tidal marshes.
Hence, the prospects for 'sustainability', at least with regard to mosquito-borne risk management, appear to be currently weak, with an outlook of increasing uncertainty.
Regarding benefit to the community, the benefits described for the proposed development are essentially of a private nature and attributable to a small number of future residents. However, we acknowledge that one likely environmental benefit from the proposed development was identified by Mr Johnson, in that a change of land use to non-commercial levels of grazing, might end intensive cattle husbandry, and may therefore lead to a reduction in phosphorus export to the Estuary. There was no other assertion or evidence of any significant public benefit, for example through the creation of any public amenity, or through biodiversity gains.
SPP 2.5 also emphasises the avoidance of land use conflicts. If the development were to proceed, the Tribunal accepts the evidence of the respondent's witnesses that new residents encountering seasonal or episodic peaks in mosquito activity would be likely to place pressure on the various authorities to carry out conventional control measures in the adjacent wetlands. An MMP may foreshadow the same steps. These are measures which, if implemented, would be likely to constitute threats to the aquatic or terrestrial ecosystems of the 'Class A' reserve. In this way, a land use conflict could become established between a new rural residential subdivision and the purpose of the pre-existing adjacent public open space and reserve wetlands.
As we have seen, the driver of that conflict lies in the immediate juxtaposition of Lot 102 with the area's major mosquito breeding area. It is that proximity which seems to distinguish the circumstances of Lot 102 from other rural residential developments nearby. There is thus no useful separation distance achieved between the pre-existing conservation wetland habitats, within which there are major mosquito breeding sites, and the proposed subdivision. This is the primary reason by which the mosquito monitoring and dispersal studies identify unusually high levels of risk at Lot 102. The risks in this instance arise from native insect fauna dispersing from the conservation ecosystems of the public open space, wetlands and nature reserve, as distinct from, for example, dust or emissions of any kind associated with the proposed development.
Nevertheless, the likely outcome as a new land use conflict without adequate separation distances could be broadly similar.
In Moore River Company Pty Ltd v Western Australian Planning Commission [2007] WASAT 98, regard was had, under relevant instruments, to minimising the 'ecological footprint' of human settlement in certain cases. With respect to rural residential development at Lot 102 adjoining the northern Leschenault Estuary, the same general approach of seeking to minimise the human footprint should, we think, apply.
The western portion of the subject land lies, as we have mentioned, within a conservation category wetland and an environmentally sensitive area. At the western boundary, ROS serves as a foreshore reserve. The visual landscape of the site has been assessed as one of considerable importance, reflecting the confluence of an undisturbed estuary and coastal dunes with farmland.
No land clearing is proposed for this development, but conventional treatments for mosquitoes include runnelling and larvicides which, if implemented, would disturb or degrade the samphire, rush beds and other valuable wetland habitat and aquatic values of the estuary. Continuing advocacy for the expansion of mosquito control measures to relieve probably episodic, but repeatedly serious, mosquito problems likely at Lot 102 would arguably apply longterm pressure for the development footprint to extend, by ecosystem modifications of some sort, through ROS foreshore areas and a conservation category wetland.
Generally speaking, all that we have written above is also reflected in the EPA's Guidance Statement No 40, 'Management of Mosquitoes by Land Developers' (2000) and their Bulletin No 1281 of 3 March 2008 (dealing with the Keralup Masterplan).
Extending mosquito control programs in support of the development therefore does not appear to be consistent with the EPA's objectives for the protection of State and regionally significant wetlands.
However, while such a general position, as all of this discussion points to, raises legitimate concerns, does it necessarily dictate a refusal of the proposed subdivision?
Conclusions of the Tribunal
The Tribunal has already found that the proposed subdivision is not inconsistent with the planning framework, and that the visual and physical impact of the development that would flow from that subdivision can be, in effect, adequately regulated - apart, that is, from issues to do with the impact and control of mosquitoes.
The Tribunal is satisfied that the development of Lot 102 is likely to place future residents at recurrent high levels of risk to lifestyle and amenity from mosquito concentrations around their extensive natural breeding areas around the Leschenault Estuary. As a consequence of this proximity, residents of the proposed development would be likely to be exposed to RRV, transmitted by biting mosquitoes, and at a significantly higher risk of disease than at preexisting subdivisions nearby.
The Tribunal finds that there is insufficient basis for the assertion that an MMP, at least in respect of off-site ameliorative steps, would be likely, in practice, to meet the normal public expectation of effective reduction in risk levels through such mosquito control measures. This is not to say, however, that it should not be attempted. Nonetheless, conventional off-site measures such as those proposed in such plans would be likely to involve vegetation damage or clearing for drainage works, the disturbance of acid sulphate soils, and would seek to extend chemical control measures into and around the Conservation Category Wetland and the Environmentally Sensitive Area of the northern Leschenault Estuary. Such measures, if implemented, would be likely to constitute relevantly threatening processes for the sustainability of wetland conservation values. These concerns are, we note, broadly reflected in aspects of the regional planning framework.
The Tribunal is also concerned that it appears that no planning instrument or guideline addresses the need for separation distances, or appropriate buffers, to enable residential developments to be provided with a fundamental measure of public health risk reduction. Such a measure could be the result of achieving adequate separation from important tidal salt marshes and wetlands, especially where these are managed for conservation purposes, and where episodic breeding and the emergence of disease-carrying flying insects constitute normal ecological events.
This absence in the planning framework is part of a general absence of any instrument that provides clear planning guidance on the many questions associated with 'biting insects'. However, it is not the duty of the Tribunal to formulate written policies about such matters. In Waddell and Western Australian Planning Commission [2007] WASAT 82 it was said, at [76]:
… As was noted in Bojanich and Western Australian Planning Commission [[2006] WASAT 315] at [67], this Tribunal is not the designated policy-maker or regulatory body for such decisions. These decisions and related action, if they are to take place at all, must originate within the corridors of power where responsibility has been assigned for them under our structure of government. In this case they do not include the Tribunal.
Where, as here, a relatively small number of persons are likely to be affected by one particular negative factor, a factor that as a starting point can be brought to any purchaser's attention under existing title arrangements, then in the absence of a specific State policy setting down guidance for such decisions, and where the proposal otherwise warrants approval on its merits, we have concluded, albeit after anxious consideration, that conditional approval to the subdivision ought to be given.
Conditions
Beyond anything already agreed to by the parties, considerable work will still be needed by the parties to bring in a set of suitable conditions to address the various matters that we have raised in these reasons or that otherwise arise out of the substantial volume of environmental material placed before the Tribunal. The parties will therefore be directed to negotiate in good faith on the question of such conditions. As in other cases, Mr Curry of this Tribunal will be available to assist the parties, if necessary, with mediation on the question of suitable conditions.
Orders
For these reasons, we order that:
1.The application for review is allowed.
2.The decision under review is set aside and substituted in its place will be a decision granting approval for subdivision upon the plans and conditions to be finalised or agreed upon by the parties and endorsed by the Tribunal within 28 days or such further time as the Tribunal allows, being conditions negotiated in good faith and not inconsistent with these reasons.
3.The parties have liberty to apply for directions.
I certify that this and the preceding [155] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
- AGLC
- NARCOM HOLDINGS and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 23
- Case
- [2011] WASAT 23
- Decision Date
CaseChat Overview and Summary
The court examined the language of the planning scheme, noting its poor drafting and the absence of specific references to rural residential development. Despite these issues, the court concluded that the scheme, when construed as a whole, did contemplate such development on the land in question. The court also found that the proposed subdivision did not conflict with State policies on rural land management and fragmentation, as the land was already being used for grazing.
In light of these findings, the court turned to the environmental and ecological considerations. The land was environmentally sensitive and abutted a conservation wetland, a fact which had been the subject of extensive studies over 25 years. The court considered the visual, physical, environmental, and ecological factors, as well as sustainability, in determining whether these could lead to the refusal of the subdivision. The court concluded that these factors could be regulated by conditions, rather than denying the subdivision outright. Additionally, the court found that a substantial mosquito risk for future residents, although significant, did not outweigh the benefits of the subdivision. This was because there was no State policy addressing biting insects, and only a small number of residents would be affected. The court also noted that notices on the title and the overall merit of the proposal warranted approval.
The court granted conditional approval to the subdivision, as recommended by the Tribunal. The court's decision highlighted the importance of considering the true construction of a planning scheme, the potential for conditions to address environmental and ecological concerns, and the balance between development and conservation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.