PARKRIDGE GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2017] WASAT 118
•11 SEPTEMBER 2017
PARKRIDGE GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 118
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 118 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:314/2016 | 2 AND 3 AUGUST 2017 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) MR P DE VILLIERS (MEMBER) | 11/09/17 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed and decision of respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | PARKRIDGE GROUP PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Development application Subdivision application 70 lot subdivision Requirement of the scheme for a structure plan Whether the 'Eaton Structure Plan' is an approved structure plan Discretion to approve subdivision in the absence of a structure plan Public open space Earthworks on balance lot Native vegetation Ground water levels Whether approval would conflict with orderly and proper planning Whether approval would prejudice the overall development potential of the area |
Legislation: | Greater Bunbury Region Scheme, cl 6 Metropolitan Redevelopment Authority Act 2011 (WA) Planning and Develolpment (Local Planning Schemes) Regulations 2015 (WA), reg 15(a)(ii), reg 27, reg 27(2), reg 79(1), Sch 2, Pt 4, cl 14, cl 15, cl 16 Planning and Development Act 2005 (WA), s 135, s 138, s 251(1), s 257B, s 257B(3) Shire of Dardanup Town Planning Scheme No 3, cl 2.2, cl 3.15.7 |
Case References: | AAA Egg Company Pty Ltd and the Shire of Gingin [2013] WASAT 149 Cockburn Cement Limited and Western Australian Planning Commission [2014] WASAT 45 Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162 Dimasi and Western Australian Planning Commission [2007] WASAT 200 Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 Gauci and Western Australian Planning Commission [2017] WASAT 42 Hill and Western Australian Planning Commission [2013] WASAT 195 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 Myer Queenstown Garden Plaza Pty Ltd and the City of Port Adelaide (1975) 33 LGRA 70 Parkridge Group Pty Ltd and Western Australian Planning Commission [2011] WASAT 113 Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110 Starnes and Western Australian Planning Commission [2012] WASAT 238 Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 Williamson and Western Australian Planning Commission [2011] WASAT 94 Wilson and Western Australian Planning Commission [2007] WASAT 296 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent on 19 September 2016 to refuse the application to subdivide Lot 9004 Peninsular Lakes Drive, Eaton is affirmed. |
Summary | The applicant, Parkridge Group Pty Ltd, applied to the Western Australian Planning Commission for approval to subdivide certain land in Eaton, near Bunbury. The Commission refused to grant that approval for a number of reasons including that the proposed subdivision was inconsistent with the structure planning requirements of the Shire of Dardanup Town Planning Scheme No 3. Parkridge then applied to the Tribunal for a review of the Commission's decision.,The Tribunal first considered whether or not there existed, as claimed by Parkridge, an approved structure plan for the subdivision within the meaning of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). Parkridge said that because there was an approved structure plan, approval for the subdivision ought to be granted, subject to conditions if the Tribunal considered it necessary.,The Tribunal considered the background and history of the 'Eaton Structure Plan' and concluded that it was not an approved structure plan as contemplated by the Regulations.,The Tribunal then considered whether it could and should exercise its discretion to approve the subdivision in the absence of an approved structure plan. Having concluded that approval could be given in the absence of an approved structure plan, the Tribunal then considered whether or not the application would conflict with orderly and proper planning and whether it would prejudice the overall development potential of the area.,The Tribunal's decision was that approval should not be granted and it upheld the decision of the Commission. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PARKRIDGE GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 118 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR P DE VILLIERS (MEMBER)
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Development application - Subdivision application - 70 lot subdivision - Requirement of the scheme for a structure plan - Whether the 'Eaton Structure Plan' is an approved structure plan - Discretion to approve subdivision in the absence of a structure plan - Public open space - Earthworks on balance lot - Native vegetation - Ground water levels - Whether approval would conflict with orderly and proper planning - Whether approval would prejudice the overall development potential of the area
Legislation:
Greater Bunbury Region Scheme, cl 6
Metropolitan Redevelopment Authority Act 2011 (WA)
Planning and Develolpment (Local Planning Schemes) Regulations 2015 (WA), reg 15(a)(ii), reg 27, reg 27(2), reg 79(1), Sch 2, Pt 4, cl 14, cl 15, cl 16
Planning and Development Act 2005 (WA), s 135, s 138, s 251(1), s 257B, s 257B(3)
Shire of Dardanup Town Planning Scheme No 3, cl 2.2, cl 3.15.7
Result:
Application for review dismissed and decision of respondent affirmed
Summary of Tribunal's decision:
The applicant, Parkridge Group Pty Ltd, applied to the Western Australian Planning Commission for approval to subdivide certain land in Eaton, near Bunbury. The Commission refused to grant that approval for a number of reasons including that the proposed subdivision was inconsistent with the structure planning requirements of the Shire of Dardanup Town Planning Scheme No 3. Parkridge then applied to the Tribunal for a review of the Commission's decision.
The Tribunal first considered whether or not there existed, as claimed by Parkridge, an approved structure plan for the subdivision within the meaning of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). Parkridge said that because there was an approved structure plan, approval for the subdivision ought to be granted, subject to conditions if the Tribunal considered it necessary.
The Tribunal considered the background and history of the 'Eaton Structure Plan' and concluded that it was not an approved structure plan as contemplated by the Regulations.
The Tribunal then considered whether it could and should exercise its discretion to approve the subdivision in the absence of an approved structure plan. Having concluded that approval could be given in the absence of an approved structure plan, the Tribunal then considered whether or not the application would conflict with orderly and proper planning and whether it would prejudice the overall development potential of the area.
The Tribunal's decision was that approval should not be granted and it upheld the decision of the Commission.
Category: B
Representation:
Counsel:
Applicant : Mr P McGowan briefed by Ms L Rowley
Respondent : Ms L Diaz
Solicitors:
Applicant : Rowley Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
AAA Egg Company Pty Ltd and the Shire of Gingin [2013] WASAT 149
Cockburn Cement Limited and Western Australian Planning Commission [2014] WASAT 45
Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162
Dimasi and Western Australian Planning Commission [2007] WASAT 200
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Gauci and Western Australian Planning Commission [2017] WASAT 42
Hill and Western Australian Planning Commission [2013] WASAT 195
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Myer Queenstown Garden Plaza Pty Ltd and the City of Port Adelaide (1975) 33 LGRA 70
Parkridge Group Pty Ltd and Western Australian Planning Commission [2011] WASAT 113
Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110
Starnes and Western Australian Planning Commission [2012] WASAT 238
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Williamson and Western Australian Planning Commission [2011] WASAT 94
Wilson and Western Australian Planning Commission [2007] WASAT 296
Introduction
1 On 23 June 2016, Parkridge Group Pty Ltd (applicant) applied to the Western Australian Planning Commission (Commission) for approval to subdivide Lot 9004 Peninsular Lakes Drive, Eaton, in the Shire of Dardanup (subject land). The subject land comprises an area of 33.7 hectares and is currently vacant.
2 The application to the Commission involves the creation of 70 residential lots (and one balance lot to the west of Peninsula Lakes Drive) which are located on a 5.8 hectare area on the southern portion of the subject land and leaves the remaining land to the north in an additional balance lot of 27.96 hectares.
3 On 19 September 2016, the Commission refused the application and provided the following reasons for its decision:
1) The proposed subdivision is inconsistent with the structure planning requirements of the Shire of Dardanup Town Planning Scheme No 3 (TPS 3 or Scheme) given there is no Council considered or Commission endorsed structure plan that informs the proposed residential lots or provides a context for the future subdivision of the balance of Lot 9004.
2) The proposed subdivision is inconsistent with the deemed provisions for structure plans under cl 15 of Sch 2, Pt 4 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations), as the Commission considers that a local structure plan is required for orderly and proper planning of the subject land and adjoining land holdings including the adjacent Colley River foreshore (lots 9503, 9504 and 9505). Accordingly, the proposed subdivision pre-empts the structure planning process, prejudices future planning and does not address the requirement for coordinated planning across the land within the 'Development' zone and interface with adjacent 'Regional Open Space' reserved land.
3) The proposed subdivision is incompatible with the objectives of State Planning Policy 3.0 Urban Growth and Settlement which seeks to make efficient and sustainable use of land and '[t]o promote a sustainable and well planned pattern of settlement across the State, with sufficient and suitable land to provide for a wide variety of housing, employment, recreation facilities and open space'.
4) The proposed subdivision is inconsistent with WAPC policy Better Urban Water Management and State Planning Policy 2.9 Water Resources, as the potential impacts on water dependent ecosystems, the requirements for total water cycle management and stormwater management have not been addressed for the land through the preparation of a Local Water Management Strategy.
5) The proposed subdivision is inconsistent with policy measure 6.4 'Information to accompany subdivision applications' of State Planning Policy 3.7 Planning in Bushfire Prone Areas, as the application does not address the following:
i) the preparation of a Bushfire Attach Level (BAL) Contour Map;
ii) the identification of bushfire hazard issues, including that associated with revegetating future and existing foreshore reserves for conservation purposes; and
iii) an assessment against the bushfire protection criteria requirements of the Commission's policy through the preparation of a Bushfire Management Plan.
6) The proposed subdivision does not meet the minimum public open space requirement of 10% of the gross subdivisible area of the land, as it relates to the whole of the parent lot of Wellington Location 19, as subdivided by the applicant, as calculated using the formula prescribed under the Commission's Development Control Policy 2.3 'Public Open Space in Residential Areas' and the principles for parkland as set out in Liveable Neighbourhoods.
7) The proposed subdivision has not adequately addressed the following design parameters as required under Liveable Neighbourhoods:
i) a suitable range of lot sizes, lot typologies and residential densities;
ii) a clear road and pedestrian movement hierarchy connected with the established road and path network and through the subdivision;
iii) integration with the community design in the adjoining Garden of Eaton Local Structure Plan;
iv) protection of the proposed Regional Open Space system from encroachment and off-site impacts of development and subdivision;
v) protection of significant remnant vegetation, flora and fauna values, and enhancement of endangered fauna habitat;
vi) wetland protection and conservation buffers; and
vii). provision of public open space at a location and of a size which caters for a local recreation needs.
8) The proposed subdivision has not adequately addressed the biodiversity values of the locality (for example, the flora, fauna, wetlands and vegetation) and the interface with the Regional Open Space (that is, the Collie River Foreshore) through the preparation of the structure plan and associated environmental management plan and a foreshore management plan.
4 On 19 October 2016 the applicant applied to the Tribunal for a review of this decision pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act). The applicant considers that the subdivision application should be approved.
5 We will consider the parties' submissions later in these reasons, but it should be noted at this stage that the applicant maintains that there is in existence a structure plan for the subdivision, approved by Council and the Commission.
Site and Locality
6 References in these reasons to Attachments are references to plans or photographs attached to these reasons.
7 The subject land comprises Lot 9004 Peninsular Lakes Drive, Eaton. It falls within Location 19 – see Attachment 4. The Peninsular Precinct at Eaton, which is located approximately 8.5 kilometres eastnortheast of the Bunbury Central Business District, represents the final phase of subdivisions and development at Parkridge Estate and the current application comprises the third stage of the Peninsula Precinct.
8 Lot 9004 is bounded by the Collie River floodway to the north and west, by Eaton Drive and land as yet not subdivided to the east (Millbrook) and the first and second stages of the Peninsular Precinct to the south.
9 The subject land is located 350 metres to the east of the Collie River and approximately 4 kilometres upstream of its confluence with the Leschenault Estuary - see Attachment 1: Aerial Photo.
The proposal
10 The proposed subdivision is Stage 3 of the Peninsula Precinct of the Parkridge Estate. This involves the creation of 70 lots and one balance lot on the western side of Peninsula Lakes Drive, to the north of Stage 2 of the Peninsular Precinct, on an area of land of 5.80 hectares. Stage 2, the majority of which has been developed, comprises 30 single residential lots which were approved by the Commission in December 2011 - see Attachment 2: Parkridge Stage 3 Proposed Subdivision.
11 The proposed residential lots vary in area from 580m² to 753m² with an average size of 638m². The remainder of Lot 9004 to the north of the proposed development will be retained in a balance lot of 27.96 hectares. The intention is that the balance lot will be utilised for future residential subdivision.
12 The area will be accessed by extension to three existing roads, Peninsular Lakes Drive, Wandoo Way and Robusta Road and the provision of a new eastwest road close to the northern extremity of the subdivision. This will establish lots in the eastern and northern portion of the subdivision with a northsouth orientation and those in the western portion with a southwest/northeast orientation.
13 An overall layout plan covering the whole of the subject land was provided with the application to illustrate a more detailed planning context of the site - see Attachment 3: Parkridge Peninsula Precinct Overall Context Plan.
Planning Framework
1. State Planning Framework
PD Act
14 Section 135 of the PD Act requires that a person is not to subdivide any lot without the approval of the Commission.
15 Section 138 of the PD Act sets out the Commission's functions when approving subdivision and requires at subsection (2) that:
the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.
- State Planning Policies
16 The Commission has prepared a number of planning documents relating to the subdivision of land for the purpose of exercising the power of the Commission under s 135 and s 138 of the PD Act to approve a plan of subdivision. State Planning Policy No 1 [Variation No 2 October 2016]provides that:
2.3 This SPP restates and expands upon the key principles of the State Planning Strategy in planning for sustainable land use and development. It brings together existing State and regional policies, strategies, and guidelines within a central State Planning Framework (Framework) which provides a context for decision-making on land use and development in Western Australia
2.4 The Framework informs the Commission, local government and others involved in the planning process on State level planning policy which is to be taken into consideration, and given effect to, in order to ensure integrated decision-making across all spheres of planning.
17 The plans, policies and strategies that form the State Planning Framework are listed in Part B of the policy. The following policies and strategies listed in the policy are relevant in the consideration and determination of this matter:
• State Planning Policy 2.9 Water Resources
• State Planning Policy 3.0 Urban Growth and Settlement
• State Planning Policy 3.4 Natural Hazards and Disasters
• State Planning Policy 3.7 Planning in Bushfire Prone Areas
• Development Control Policy 1.1 Subdivision of Land General Principle
• Development Control Policy 2.2 Residential Subdivision
• Development Control Policy 2.3 Public Open Space in Residential Areas
• Development Control Policy (Operational Policy): Liveable Neighbourhoods
- Structure Plan Provisions
18 Relevantly, the Commission has, over the past fifteen years, established provisions in regard to structure plans. These are set out below.
| State Structure Plan Provisions | |
| February 2000 |
|
| 25 August 2015 |
|
2. The Regional Planning Framework
19 The majority of the subject land is zoned 'Urban' under the Greater Bunbury Region Scheme (GBRS). However, a small area in the north of the subject land is zoned 'Regional Open Space' under the GBRS.
20 The aims of the GBRS include at cl 6 the following:
(a) promote the sustainable development of land taking into account relevant environmental, social and economic factors;
...
(c) protect as regional open space the region’s coastal foreshores, the foreshores of the Harvey, Brunswick, Collie, Preston and Capel Rivers, and the Leschenault Estuary and Inlet, as well as other areas of regional conservation significance and areas for regional recreational facilities[.]
21 In addition in December 2016 the Commission released the GBRS Floodplain Management Policy (Draft for Public Comment). This document is intended to replace the previous policy introduced in 2005.
3. The Local Planning Framework
TPS 3
22 Most of the subject land is zoned 'Development Zone' under TPS 3. However, small areas in the north of the subject land are zoned 'Regional Open Space' and 'Recreation' under TPS 3.
23 In order to effectively address the matters argued by the parties in this proceeding it is necessary to provide the background to a number of relevant historic amendments to TPS 3, which was originally gazetted in March 1979, made by the Shire of Dardanup (Shire or Council).
Amendment 47 | |
| 20 December 1991 |
|
| February 1992 |
|
| 10 December 1992 |
|
| 23 May 1993 |
|
| 12 July 1993 |
|
| 16 July 1993 |
|
Amendment 144 | |
| 10 July 2007 |
|
| |
Amendment 187 | |
| 25 July 2011 |
|
| 21 May 2014 |
|
| 24 September 2014 |
|
| 22 January 2015 |
|
| 10 February 2015 |
|
24 Clause 2.2 of TPS 3 establishes the objectives of the zones, which, in the case of the 'Development Zone' reads as follows:
• To provide for the orderly planning of large areas of land through a comprehensive Structure Plan which is able to respond to changing circumstances throughout the developmental stages of the area.
25 Clause 3.15.7 of TPS 3 establishes detailed provisions for the Development Zone.
4. The LPS Regulations
26 The LPS Regulations were gazetted on 25 August 2015.
27 Section 257B(3) of the PD Act states that if a 'deemed provision ... is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect'.
28 The deemed provisions for local planning schemes are set out in Sch 2 of the LPS Regulations (Deemed Provisions). Clause 14 of the Deemed Provisions defines a structure plan in the following terms:
structure plan means a plan for the coordination of future subdivision and zoning of an area of land.
29 Clauses 15 and 27 of the Deemed Provisions set out respectively when a structure plan may be prepared and the effect of a structure plan:
15. When structure plan may be prepared
A structure plan in respect of an area of land in the Scheme area may be prepared if
(a) the area is
(i) all or part of a zone identified in this Scheme as an area suitable for urban or industrial development; and
(ii) identified in this Scheme as an area requiring a structure plan to be prepared before any future subdivision or development is undertaken;
or
(b) a State planning policy requires a structure plan to be prepared for the area; or
(c) the Commission considers that a structure plan for the area is required for the purposes of orderly and proper planning.
27. Effect of structure plan
(1) A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.
(2) A decision-maker for an application for development approval or subdivision approval in an area referred to in clause 15 as being an area for which a structure plan may be prepared, but for which no structure plan has been approved by the Commission, may approve the application if the decision-maker is satisfied that
(a) the proposed development or subdivision does not conflict with the principles of orderly and proper planning; and
(b) the proposed development or subdivision would not prejudice the overall development potential of the area.
A planning instrument made under the Act before commencement day and in accordance with the repealed regulations or a State planning policy continues in force as if it were a planning instrument of the same type made under the Act in accordance with these regulations.
The issues
31 The issues put forward by the Commission in this matter are expressed substantially as follows:
1) A primary issue for the Tribunal is whether the subdivision application should be approved.
2) The specific issues in this case are:
a) Whether the Tribunal can be satisfied, in circumstances where a structure plan has not been prepared for the subject land, that approval of the subdivision application would not conflict with the principles of proper and orderly planning, and would not prejudice the overall development of the area, for the purposes of cl 27(2) of the Deemed Provisions.
b) Whether approval of the subdivision application would otherwise accord with the principles of proper and orderly planning.
3. Subissues which the Commission says are relevant to the issues in paragraph 2 are:
a) What are the applicable principles of orderly and proper planning and requirements for overall development of the area, and in particular, whether they are contained in the following documents:
i) TPS 3;
ii) the Deemed Provisions
iii) the Commission's Development Control Policies 1.1 'Subdivision of land General principles' and 2.2 'Residential Subdivision';
iv) State Planning Policy 3.0'Urban Growth and Settlement' and the respondent's 'Liveable Neighbourhoods' policy in relation to urban growth and settlement pattern (including community design and lot layout);
v) State Planning Policy 3.7'Planning in Bushfire Prone Areas' pertaining to bushfire management;
vi) State Planning Policy 2.29 'Water Resources', State Planning Policy 3.4 'Natural Hazards and Disasters' and the Shire of Dardanup Local Planning Strategy (LPS) concerning urban water management and floodplain management and the protection of the Collie River; and
vii the Commission's Development Control Policy 2.3 'Public Open Space in Residential Areas' relating to the provision of public open space.
b) Whether the failure to prepare a structure plan for the subject land is inconsistent the requirements of the applicable planning instruments.
c) Whether the subdivision application is otherwise inconsistent with the requirements of any applicable planning instruments.
33 The applicant submits that the substantive issues which arise from the reasons (in order of importance) are as follows:
1) the existence of what it refers to as a 'Council considered WAPC endorsed structure plan';
2) the correct calculation of public open space required and ceded to date from Parkridge Estate;
3) the proposed pattern of subdivision and application of design parameters under the Liveable Neighbourhoods Policy;
4) potential environmental issues; and
5) potential bushfire issues.
34 During the hearing, considerable time was given to submissions regarding the status of the 'Eaton Structure Plan' which the applicant argued was an approved and endorsed structure plan. The 'Eaton Structure Plan' is described later in these reasons. The Commission however argued it had never approved or endorsed the 'Eaton Structure Plan'.
35 Accordingly, the Tribunal considers that the first issue (Issue One) is:
1) Whether the 'Eaton Structure Plan' (Plan 9) is a 'structure plan' within the meaning of the Deemed Provisions.
36 Depending on the finding by the Tribunal on this issue, the Tribunal considers that two further issues then arise (Issue Two and Issue Three respectively):
2) If the 'Eaton Structure Plan' constitutes a structure plan, and having due regard for the structure plan, whether the proposed subdivision the subject of this review should be approved and, if so, subject to what, if any, conditions?
3) If it does not constitute a structure plan, then would the approval, exercising discretion under the provisions of cl 27(2) of the Deemed Provisions of the proposed subdivision:
(a) conflict with the principles of orderly and proper planning; and
(b) prejudice the overall development potential of the area?
37 As we have said, a significant issue between the parties in this proceeding is the status of the 'Eaton Structure Plan'.
38 In order to effectively interrogate the status of the ‘Eaton Structure Plan' it is necessary to provide the contextual background against which the submissions and evidence of the parties is put.
'Eaton Structure Plan' | |
| 1987 |
|
| December 1989 |
|
| 1991 |
|
| 20 December 1991 |
|
| 11 June 1992 |
|
| 15 September 1992 |
|
| 23 May 1993 |
|
| November 1995 |
|
| 24 January 1997 |
|
| 3 November 2003 |
|
| 14 November 2003 |
|
39 The applicant's submission is that 'An approved and endorsed Structure Plan exists for the Parkridge Estate'.
40 In opening, counsel for the applicant drew the Tribunal's attention to a previous decision of the Tribunal in AAA Egg Company Pty Ltd and the Shire of Gingin [2013] WASAT 149 and referred us to the Tribunal's summary of its decision on that matter.
41 One of the issues in those proceedings was whether the local authority had in fact granted planning approval for a proposed development. In dealing with that question the Tribunal at [15] referred to the following statement of Wells J in in Myer Queenstown Garden Plaza Pty Ltd and the City of Port Adelaide (1975) 33 LGRA 70 (Myer Queenstown Garden Plaza at 92:
[It] is essential, therefore, to look at the circumstances in which the resolution or proposition was made if it is to be given its fair and natural meaning.
42 His Honour then went on to say:
It would, accordingly, be misleading to rely only on the bare words of the resolution disengaged from the events that led to, and resulted from it being passed, and to look for unreason rather than reason.
43 The Tribunal is of the view that the principles established in Myer Queenstown Garden Plaza are entirely appropriate in framing its deliberations in the current proceedings.
44 In closing, counsel for the applicant set out in detail its case in regard to this issue which included:
Now in this regard the questions posed ...; in relation to the search for a stamp or a seal [on the 'Eaton Structure Plan'] is a pursuit for form as an end in of itself. If in substance the documents on which we rely demonstrate that the only way to understand them is that the South West Regional Planning Committee, which has delegation under the Act and therefore is the statutory authority – if in fact it has approved the structure plan which did exist, then that's the decision to which the Tribunal should come.
(T:243244; 03.08.17)
and
… .in an evidentiary sense the fact that over 20 odd years not once does it (… the Commission …) come back to and say 'we don't have a structure plan and that's why we are refusing it' can only be understood in an objective sense by the applicant as it was and an objective sense as we invite the Tribunal to find because they had approved the structure plan.
(T:245; 03.08.17)
45 Mr Saulsman, a Director of the applicant gave evidence to the Tribunal. In his witness statement dated 14 June 2017 he states:
On 6 May 1993, the South West Region Planning Committee of DPUD resolved to approve Amendment 47 including the Structure Plan and on 25 May 1993 the Minister endorsed approval to that resolution.
46 The final paragraph of the SWRPC correspondence dated 6 May 1993 which is titled 'Proposal to amend a Town Planning Scheme Submitted for Final Approval', reads as follows:
RECOMMENDATION
The South West Region Planning Committee acting on behalf of the Commission under delegated power resolved to recommend that the Hon Minister determine the submissions as set out in the Schedule of Submissions and require Council to modify the documents to reflect R15 coding on the Development Guide Plan and to stipulate R15 coding in the amending text before approval is given.
47 Mr Saulsman also states 'Amendment 47 was approved and endorsed by the State Planning Commission and the Minister on 12 July 1993'.
48 We note that the final approval dated 12 July 1993 was for some reason not signed on behalf of the State Planning Commission but where that signature was to be placed, the document states 'Recommended/Submitted for final approval'. That document does not include or make any reference to the 'Eaton Structure Plan'.
49 Mr Saulsman also relies on the report of the SWRPC dated 11 October 1993 which states:
The subject land is located between the Collie River and the Australind By Pass Road, to the north of the existing Eaton residential area (see attached locality plan). Along with adjoining farm land it formed the basis of a Structure Plan and a rezoning recently endorsed by the Committee and approved by the Minister.
The Tribunal's deliberations on Issue One
50 The need for a structure plan for Eaton was foreshadowed in the Bunbury Region Plan released by the State Government in 1987. With the support of the South West Development Authority, the Shire commissioned the production of the 'Eaton Structure Plan'.
51 At the meeting of the Shire held on 20 December 1991 the following resolution was adopted:
Council resolved to adopt the revised Eaton Structure plan prepared by BSD Consultants as a guide for the further development of locations 19 and 49, Eaton.
52 Late in 1991, the Shire initiated, through Amendment 47 to TPS 3, the rezoning of Leschenault Location 19 Eaton from 'General Farming' to 'Residential', 'Residential Development Area' and 'Recreation'.
53 The scheme amendment report references the structure plan which it suggests was attached to the amendment document. However, correspondence from the SWRPC to the Council dated 11 June 1992 states:
Although the draft Structure Plan did not accompany the amending documents a copy was made available to facilitate the processing of the amendment.
54 More importantly, the SWRPC in the same correspondence advised it was not prepared to make a decision on Amendment 47 until such time that a structure plan was endorsed by the Commission for the whole of the existing and future urban areas of Eaton (Lot 19 and Lot 49 see Attachment 4).
55 However, further correspondence from the SWRPC dated 15 September 1992 suggests the requirement set out above had been reconsidered although in the SWRPC's view a review of Structure Planning for the remainder of the Eaton area was still warranted.
56 The recommendation from the SWRPC for the approval for the Amendment 47 subject to amendments, signed by the Minister for Planning on 23 May 1993, simply makes reference to the fact that 'The Guide Plan and related policies are included in the document and form the basis for detailed subdivision planning'. Relevantly, the formal recommendation of the SWRPC refers to the 'Eaton Structure Plan' as a 'Development Guide Plan'.
57 In the absence of any evidence to the contrary the logical inference to be drawn is that the 'Eaton Structure Plan', referred to as a 'Development Guide Plan' by the SWRPC, did not receive formal endorsement by the Commission or the SWRPC as a structure plan.
58 Such an inference is consistent with the evidence of the expert planning witnesses who agreed the following:
• The role of the SWRPC in the scheme amendment process, under delegated authority from the Commission, is to make a recommendation to the Minister for Planning.
• They had not seen any evidence of a formal approval of the 'Eaton Structure Plan' by either the Commission or the SWRPC.
59 It is clear that in 1991 the amended 'Eaton Structure Plan' was adopted by the Shire and that this structure plan, as further amended, while it was not endorsed or approved by the Commission or the SWRPC, did inform the assessment of a number of subsequent subdivision applications by the Commission on Lot 19 between 1993 and 2001. However, for reasons which were not established, any reliance on the 'Eaton Structure Plan' by the Commission no longer seems to have been the case after 2001.
60 In 1995, the Commission's Bunbury-Wellington Region Plan stated that '[a] Structure Plan has been prepared for Eaton but requires some modification before adoption' and subsequent correspondence from the Manager of Local Planning South West Region in 1996 suggested '[t]he Eaton Structure Plan has not been formally endorsed by the Western Australian Planning Commission because the status of the revisions and maps is uncertain and parts are now out of date'. This position was confirmed in correspondence to the Shire in 1997 by the same officer who stated '[i]n its current form the Eaton Structure Plan could not be endorsed by the Commission'.
61 It can be reasonably inferred, however, that the opinion of the technical officers supporting the SWRPC was communicated to the applicant because in correspondence from Thompson McRobert Edgeloe, consultants acting for the applicant in 2003, it is stated 'I confirm our client is committed to a review of the structure planning for the Peninsula precinct but is keen to allow for some subdivision to proceed during the structure planning process'.
62 In 2007 the Commission supported Amendment 144 to the Shire's TPS 3, which introduced a 'Development Zone' into TPS 3 '… to provide for the orderly planning of large areas of land through a comprehensive Structure Plan'.
63 In 2011, the Tribunal in Parkridge Group noted 'the unsatisfactory lack of adequate structural planning in relation to public open space and recommended more detailed planning prior to the subdivision of remaining portions of the land'.
64 In May 2014, the Council resolved to initiate Amendment 187 to rezone the northern portion of Lot 19 from 'Residential' to 'Development' 'to facilitate Structure Planning in the Parkridge Estate area' with support from the Department of Planning.
65 The applicant, in its Statement of Issues Facts and Contentions addressed Amendment 187 of TPS 3 and contends that:
The rezoning of the remaining parts of the Parkridge Estate by the Respondent to Development Zone from Residential R15 in 2015 was an improper exercise of power in that the intent was to force the Applicant to give up more public open space than it is required to under the Structure Plan and DC 2.3 and to locate that public open space in positions other than as shown in the Structure Plan.
66 This issue has been considered by the Tribunal in Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 (Terra Spei) where the applicant argued that a draft scheme amendment was 'ultra vires and invalid as it has not met the requirements of the [TP] Regulations' the Tribunal found at [233]:
It is not within the Tribunal's jurisdiction or function in this proceeding to declare or hold invalidity in the process of Amendment 68. That would require an application for judicial review to the Supreme Court[.]
67 While the circumstances are in the matter under review clearly to be differentiated from that case the legal principle set out in Terra Spei still applies.
Tribunal findings on Issue One
68 Based on evidence before it the Tribunal makes the following findings in regard to the 'Eaton Structure Plan':
1) The revised 'Eaton Structure Plan' was approved by the Shire on 20 December 1991.
2) Given that the Shire, following advice from the SWRPC, continued to make amendments to the 'Eaton Structure Plan', and while there is no definitive evidence before the Tribunal, it can reasonably be inferred that the Shire approved the revised 'Eaton Structure Plan' (Plan 9), which was provided in evidence, either late in 1992 or early in 1993 ('Eaton Structure Plan' - see Attachment 5).
3) The documents provided in evidence establish to the satisfaction of the Tribunal that the 'Eaton Structure Plan' was considered in the assessment of a number of subdivisions approved by the Commission.
4) However, based on the agreed evidence of the planning experts that the role of the SWRPC in dealing with Amendment 47 was, under delegated authority from the Commission, to provide a recommendation to the Minister and that the final approval by the Minister of Amendment 47 was limited to two maps and limited textural amendments to TPS 3, the Tribunal finds the 'Eaton Structure Plan' was not endorsed or approved by the Commission, or the SWRPC under delegated authority, in dealing with Amendment 47 in July 1993.
69 Given the Tribunal's finding that the 'Eaton Structure Plan' had not been endorsed or approved by the Commission, or the SWRPC under delegated authority from the Commission, the Tribunal finds that the 'Eaton Structure Plan' does not constitute a structure plan for the purposes of TPS 3.
70 It follows that the 'Eaton Structure Plan' does not constitute a planning instrument by operation of reg 79(1) of the LPS Regulations or otherwise. Given this finding, it is unnecessary to consider Issue Two.
Issue Three would the approval of the proposed subdivision conflict with the principles of orderly and proper planning and prejudice the overall development potential of the area?
71 It is not in dispute between the parties that the Commission, or the Tribunal on review, has discretion to consider approving a subdivision in the absence of an approved structure plan.
72 Regulation 27(2) of the LPS Regulations reads as follows:
A decision-maker for an application for development approval or subdivision approval in an area referred to in clause 15 as being an area for which a structure plan may be prepared, but for which no structure plan has been approved by the Commission, may approve the application if the decision-maker is satisfied that
(a) the proposed development or subdivision does not conflict with the principles of orderly and proper planning; and
(b) the proposed development or subdivision would not prejudice the overall development potential of the area.
73 Because the majority of the subject site is zoned 'Development' under TPS 3, and cl 3.15.7.3(a) requires a structure plan before recommending subdivision within the Development Zone, the proposed subdivision falls within the purview of reg 15(a)(ii) of the LPS Regulations (an area of land identified in the scheme as requiring a structure plan).
74 Thus in determining whether the exercise of discretion under reg 27(2) of the LPS Regulations is warranted, given the particular circumstances of this case, the Tribunal is required to assess the proposal against the two provisions set out in reg 27(2) of the LPS Regulations.
Does the proposed subdivision conflict with the principles of orderly and proper planning?
75 In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), Pritchard J, albeit in the context of the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act), set out the parameters to be applied in the exercise of discretion within a planning context at [179] and [180].
The starting point for determining the meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
... The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
Public Open Space
76 The Deemed Provisions at cl 16 establish requirements for information to be included in structure plans and includes 'any major land uses, zoning or reserves proposed by the plan'. (Emphasis added) Liveable Neighbourhoods, which is intended to guide subdivision of green field sites includes eight elements, one of which is 'Public Parkland'. In this context we consider that the planning of public open space is an integral and important component of the planning framework.
77 A major and ongoing issue between the parties is the requirement for public open space (POS). This was also an issue in Parkridge Group where at [35] the Tribunal found:
In essence, therefore, we do not consider that all of the areas that have been ceded in the different stages of the subdivision of former Location 19 should be treated as satisfying the requirements for POS[.]
and at [36]:
... A process of proper structural planning in relation to the balance of the land to be subdivided, and an agreed audit of POS ceded to date, should produce a figure for the remaining area of land required to be ceded for POS somewhere between the figures propounded by each of the applicant and the Commission[.]
78 While attempts have apparently been made to address these issues the parties remain in dispute.
79 Essentially the applicant initially submitted it has provided a surplus of POS of 8500m² (subsequently revised to 1.0174 hectares based on the calculation of Mr Young, the expert planning witness called by the applicant) while the respondent submits there is a shortfall of approximately 5 hectares (subsequently revised to 4.9196 hectares based on the calculation of Ms Marchbank, the expert planning witness called by the respondent).
80 One component of the variance is explained by the fact that the subdivision approval granted on 13 October 1993 imposed as Condition 1 that:
The foreshore and recreation area shown on the subdivision plan, measuring 42.37 hectares, being shown on the Diagram or Plan of Survey as a ‘Reserve for Recreation Management and Drainage' and vested in the Crown under Section 20A of the Town Planning and Development Act, 1928; such land to be ceded free of cost without any payment of compensation by the Crown.
81 The deposited plan of survey of November 1993 for Location 19 comprises 44.2311 hectares. This is the basis on which the applicant submits that this 'surplus' of 1.8611 hectares, should be credited to the POS calculated for the Parkridge Estate.
82 The reference to Foreshore Reserve clearly implies that this lot was associated with land required to protect the wetlands and river foreshore. However, based on all the material before it in this review, the Tribunal finds that there is no evidentiary basis for findings of fact to definitively explain either how the discrepancy arose, or to establish whether it has any direct relevance to the calculation of POS requirements for the Parkridge Estate.
83 A second difference between the parties arises in regard to Crown Reserve 48392. Essentially, the planning expert for the applicant argues that the wetland should be counted as POS provision while the planning expert for the Commission argues the wetland should be deducted as foreshore reserve. The variance between the experts is approximately 3 hectares.
84 A question arises, and was put by the applicant, as to whether the Tribunal has jurisdiction to effectively retroactively review previous POS contributions which do not form part of the proposed subdivision under review. While the Tribunal acknowledges that submission, it reiterates the position put forward by the Tribunal in Parkridge Group at [32] that:
It is not appropriate for the Tribunal to finally fix upon the precise area which should be considered as POS for the purposes of satisfaction of the requirement to cede POS. For the purposes of the present proceedings, it is sufficient to say that we prefer, in principle, the approach of the WAPC to that question.
85 The need for a structure plan
86 In October 2014, the Commission refused an application from the applicant for subdivision, citing among other reasons that Amendment 187 was a seriously entertained planning proposal and that a subdivision approval would pre-empt efforts by the Commission and the Shire to secure an appropriate and adequate structure plan for the land. The applicant did not seek a review of this decision.
87 The current application for subdivision was refused by the Commission in September 2016 for reasons which included:
The proposed subdivision is inconsistent with the structure planning requirements of the Shire of Dardanup's Town Planning Scheme No. 3 given there is no Council – considered or WAPC – endorsed structure plan that informs the proposed residential lots or provides a context for the future subdivision of the balance of Lot 9004[.]
88 The practical difficulties associated with seeking to rely on the 'Eaton Structure Plan' are firstly that the previously approved subdivisions tended to deviate from the structure plan (road layout and open space configuration) as does the subdivision the subject of this review (removal of the commercial centre and road layout).
89 More relevantly, the required detail in the 'Eaton Structure Plan' clearly falls far short of the contemporary standards for structure planning in terms of the requirements for information to be set out in a structure plan which are specified in cl 16 of the Deemed Provisions. Mr Young conceded under cross-examination that it is appropriate and reasonable to apply contemporary standards to the current application and 'the framework should be applied as it is'; (T:139; 03.08.17). It should also be noted that in commenting on the current subdivision proposal both the Department of Parks and Wildlife and the Department of Water argued that structure planning should precede the approval of any further subdivisions.
90 The principles applied by the Tribunal in dealing with the need for structure plans (or outline development plans) was set out in Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 where at [10] the Tribunal stated:
... Although I accept the submission made by Mr Bydder, counsel for the respondent, that, in consequence of s 20(5) of the TPD Act, it was within the planning discretion of the respondent to approve the subdivision application in the absence of an adopted ODP, approval of the subdivision application prior to the final formulation and adoption of an ODP for the site was, nevertheless, unfortunate. The purpose of an ODP, is to provide comprehensive strategic planning prior to the formulation, or at least approval, of specific subdivision or development applications in relation to land. Approval of the subdivision application in this case, prior to the adoption of an ODP, put the application 'cart' before the comprehensive planning 'horse'. In practical terms, it has caused the applicants some confusion which was reflected in one of their arguments considered in these reasons below. Had the proposed subdivision come before the Tribunal in the form of an application for review of a refusal or deemed refusal of subdivision approval, the Tribunal would not have been inclined to grant approval in the absence of an adopted ODP[.]
91 While the Tribunal has in the past exercised discretion in approving proposed subdivisions in the absence of a structure plan (Dimasi and Western Australian Planning Commission [2007] WASAT 200 (Dimasi), Wilson and Western Australian Planning Commission [2007] WASAT 296, Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162, Starnes and Western Australian Planning Commission [2012] WASAT 238) these matters have been restricted to a limited number of proposed lots where it was established the proposed subdivisions were consistent with previous approvals, the current planning framework or the principles of orderly and proper planning. The largest subdivision approved in these decisions was seven lots in Dimasi.
92 However, the Tribunal also has refused a number of proposed subdivisions in the absence of a structure plan (Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110 (Rocca), Williamson and Western Australian Planning Commission [2011] WASAT 94 (Williamson), Hill and Western Australian Planning Commission [2013] WASAT 195, Cockburn Cement Limited and Western Australian Planning Commission [2014] WASAT 45, Gauci and Western Australian Planning Commission [2017] WASAT 42). These were refused for being in conflict with the relevant planning provisions, the lack of a structure plan or being contrary to orderly and proper planning. They included proposals for larger scale subdivisions. Rocca involved 56 lots while Williamson involved 45 lots.
93 The currently proposed subdivision raises a number of substantive issues. To approve a subdivision of the scale proposed without a structure plan would constitute an exercise of discretion which effectively defeats a clear principle as set out in Marshall by failing to apply the current planning framework. The Tribunal has a clear responsibility to come to the correct and preferable decision based on the statutory and policy framework in place at the time of the review. That responsibility will not be departed from. Most relevantly, the approval of an additional subdivision in the Parkridge Estate would simply defer to a future point in time the consideration of substantive issues which have been evident for some considerable period of time.
94 In the current circumstances a structure plan would not only address structural planning issues raised by the current application in relation to public open space and water management but would also address the further issues of an appropriate density coding for the land and road networks, assess any need for a neighbourhood centre and resolve issues on the currently proposed balance lot (associated with fauna/flora, clearing and planning in a bushfire prone area) in a comprehensive and integrated manner.
Tribunal's findings on orderly and proper planning
95 The Tribunal finds that the exercise of discretion to approve a further subdivision in the absence of a structure plan would not meet the criteria for orderly and proper planning set out in Marshall and would undermine the legitimate aspirations found in the current planning framework. In addition, there has been an unsatisfactory lack of adequate structure planning in relation to POS.
Would the proposed subdivision prejudice the overall development potential of the area?
96 The applicant submitted that the balance lot was not part of the proposed subdivision and therefore effectively outside the Tribunal's jurisdiction in these proceedings. As a general principle, the Tribunal would accept such a proposition and in this matter the Tribunal accepts the uncontested evidence of Mr Krammer, the bushfire expert called by the applicant, that as the declared bushfire prone area is restricted to the balance lot it is not a matter for the current review.
97 However, while the applicant submitted that the balance lot is not before the Tribunal in this proceeding the report for the proposed subdivision states the following:
In order to develop in accordance with the proposed subdivision plan significant volumes of earthworks will be required to meet the minimum floor level requirements for a flood event of the Collie River, the separation to groundwater requirements and to achieve 'A' class development lots where possible.
and
To reduce the volume and cost of imported fill it is possible to win soil from the northern part of Lot 9004 and use it on the proposed 70 lot subdivision area.
98 No further details are in evidence on the earthworks required on the balance lot associated with the proposed subdivision.
99 This raises two issues for consideration. First, the area identified contains an area of remnant vegetation. Secondly, the geotechnical investigations in evidence identified ground water levels less than 1.2 metres below natural ground level in a number of areas including the southern section of the balance lot.
100 The Geotechnical Investigation undertaken by Golder Associates in December 2005 included in the application identified soil profiles. Soil profiles containing sand were observed in most of the southern half of the site, which includes the southern part of the balance lot and the majority of the subdivided area
101 The Tribunal accepts the conclusions of Ms MuirThompson, the environmental expert called by the applicant, that the vegetation in the subject land is in a 'completely degraded' condition and is very unlikely to contain any flora or vegetation of conservation significance. On that basis while she argued that it does not contain suitable habitat for any fauna species of conservation significance, the desktop environmental impact assessment she undertook was limited to the 5.8 hectares to be subdivided and did not include the balance lot.
102 The further evidence of Ms Muir-Thompson was that a Clearing Permit had been issued for Lot 9004 in 2005 but has since expired.
103 The South West Regional Ecological Linkages Technical Report (September 2009) identifies an ecological linkage along the Collie River. This report (which was in evidence) suggests that remnant vegetation on Lot 9004 may fall within the ambit of the proximity analysis framework established for ecological linkages.
104 The 2014 report by Shedley and Williams 'Western Ringtail Possum on the Swan Coastal Plain' (which was in evidence) suggests Lot 9004 potentially contains native vegetation important in maintaining the integrity of the western ringtail possum.
105 Both of these reports post-date the issue of the previous clearing permit.
106 The Environmental Impact Assessment commissioned by the Parkridge Group from Bioscience in 2012 which addressed the area of the balance lot was included in the application documentation before the Tribunal. This document noted that fauna is best protected by retaining and enhancing native bushland areas and recommended that 'any remnant native species and mature trees be retained'.
107 Secondly, the Geotechnical Investigation report by Golder Associates addressed the whole of Lot 9004 and identified that 15 of 35 test holes (as at October 2005) had ground water levels less than 1.2 metres below natural ground level. This occurred in a number of the test pits in the sand soil areas identified in the same report. A more recent Groundwater Levels Monitoring Report undertaken by Thompson McRobert Edgeloe Group in 2011, which covered all of Lot 9004 and areas to the west recommended '[t]he shallow maximum groundwater levels necessitates that plans and strategies for the management of the development's groundwater resources are approved and employed pre and post development'.
108 In the hearing, while Mr Hanly, environmental expert for the Commission, supported the provision of a water management plan prior to subdivision approval Ms Muir-Thompson argued that the issue could be dealt with by a condition on any approval.
109 The potential importance of remnant vegetation on an area which may be required to be cleared to win soil for the filling required for the subdivision and the need to manage the groundwater resources in the context of high ground water levels in the same area creates considerable uncertainty in terms of the possible impacts on the overall development potential of the area.
Tribunal's findings on the overall development potential of the area
110 Given the uncertainty associated with the earthworks on the balance lot, the Tribunal finds that the proposed subdivision would prejudice the overall development potential of the area for the following reasons:
• The proposal to win soil from the balance lot is clearly an integral component of the proposed subdivision. The Environmental Impact Assessment provided by the applicant in response to the environmental grounds of refusal was limited to a desktop assessment restricted to the 5.8 hectare subdivision rather than the whole of Lot 9004. As such its conclusions are both caveated and do not deal with the balance lot. In addition in the hearing Ms Muir-Thompson conceded that 'it's difficult to comment on what may or may not happen in the balance lot' (T;03.08.17).
• Two reports (The South West Regional Ecological Linkages Technical Report and 'An assessment of habitat for Western Ringtail Possum (Pseudocheirus occidentalis) on the southern Swan Coastal Plain (Binningup to Dunsborough))' have raised issues associated with remnant vegetation which could be impacted by the proposed earthworks.
• The technical reports on ground water levels provided in evidence raise issues in terms of the effective management of the groundwater resources on the balance lot.
• The issues of remnant vegetation and the high water table on the balance lot create considerable uncertainty in terms of the possible impacts on the overall development potential of the area.
Conclusions
111 For these reasons, the Tribunal finds that proposed subdivision the subject of these proceedings should not be approved and the Commission's decision is affirmed.
Orders
1. The application for review is dismissed.
2. The decision of the respondent on 19 September 2016 to refuse the application to subdivide Lot 9004 Peninsular Lakes Drive, Eaton is affirmed.
I certify that this and the preceding [111] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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