PIVOT GROUP PTY LTD and SHIRE OF BUSSELTON
[2007] WASAT 268
•15 OCTOBER 2007
PIVOT GROUP PTY LTD and SHIRE OF BUSSELTON [2007] WASAT 268
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 268 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:82/2007 | 17 AUGUST 2007 | |
| Coram: | MS M CONNOR (MEMBER) | 15/10/07 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | The applications for review are allowed The decision of the respondent is set aside and approval is granted | ||
| B | |||
| PDF Version |
| Parties: | PIVOT GROUP PTY LTD SHIRE OF BUSSELTON |
Catchwords: | Town Planning – Development –Two sculptures (referred to as "Free as a Bird" and "Garden of Eden") – Whether the structures are consistent with established planning framework – Visual impact of structures on the rural landscape as viewed from Caves Road – Role and relationship of wineries and associated elements in defining the rural landscape – Consideration of the impacts of the structures on the rural and scenic character of the landscape – Reflectivity of the figure – Impact of the structure on the skyline – Impact of illumination – Orderly and proper planning |
Legislation: | Planning and Development Act 2005 (WA), s 25, s 164, s 241 Shire of Busselton Town Planning Scheme No 20, cl 13, cl 14(2), cl 27, cl 84, cl 103, Table 1, Sch 10 State Administrative Tribunal Act 2004 (WA), s 31 Town Planning and Development Act 1928 (WA), s 5AA |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 26 April 2007 to refuse retrospective planning consent for the erection a structure in the dam ("Free as a Bird" sculpture) and an ancillary feature associated with the restaurant and reception centre ("Garden of Eden" sculpture) is set aside and a decision is substituted that retrospective planning consent is granted for the erection of a structure in the dam ("Free as a Bird" sculpture) and an ancillary feature associated with the restaurant and reception centre ("Garden of Eden" sculpture) on Lot 1130 Caves Road, Wilyabrup as shown on the following plans:,(i) Site Plan Drawing No a310 _cellar door plan dated 10 October 2006; ,(ii) Drawing No 20540 dated Jan 2005 (General Notes and related structural engineering plans x 2) drawn by David Norrish Consulting Civil and Structure Engineer; and,(iii) GE-1839-01-SE Sheets SN1 and SO1 drawn by TGM Engineers, Surveyors & Planners. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PIVOT GROUP PTY LTD and SHIRE OF BUSSELTON [2007] WASAT 268 MEMBER : MS M CONNOR (MEMBER) HEARD : 17 AUGUST 2007 DELIVERED : 15 OCTOBER 2007 FILE NO/S : DR 82 of 2007
- DR 84 of 2007
- Applicant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Town Planning – Development –Two sculptures (referred to as "Free as a Bird" and "Garden of Eden") – Whether the structures are consistent with established planning framework – Visual impact of structures on the rural landscape as viewed from Caves Road – Role and relationship of wineries and associated elements in defining the rural landscape – Consideration of the impacts of the structures on the rural and scenic character of the landscape – Reflectivity of the figure – Impact of the structure on the skyline – Impact of illumination – Orderly and proper planning
(Page 2)
Legislation:
Planning and Development Act 2005 (WA), s 25, s 164, s 241
Shire of Busselton Town Planning Scheme No 20, cl 13, cl 14(2), cl 27, cl 84, cl 103, Table 1, Sch 10
State Administrative Tribunal Act 2004 (WA), s 31
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The applications for review are allowed
The decision of the respondent is set aside and approval is granted
Category: B
Representation:
Counsel:
Applicant : Mr P McGowan
Respondent : Mr A Roberts
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 Pivot Group Pty Ltd applied to the State Administrative Tribunal for review of the Shire of Busselton's decision to refuse retrospective planning consent for the erection of a structure in the existing dam (referred to as "Free as a Bird" sculpture) and an ancillary feature associated with a restaurant and reception centre (known as "Garden of Eden" sculpture) on Lot 1130 Caves Road, Wilyabrup.
2 The principal issue in the review was the visual impact of the structures on Caves Road and whether such impact was consistent with the established planning framework.
3 The Tribunal, in determining the matters, was cognisant of the fact that the subject land was zoned "Viticultural & Tourism" and located within the "Landscape Value" area under the Shire of Busselton Town Planning Scheme No 20. Also of particular relevance was the fact that the land immediately adjacent to Caves Road was designated "Travel Route Corridor with Rural Landscape Significance" in State Planning Policy 6.1 - Leeuwin Naturaliste Ridge Policy and that, in accordance with State Planning Policy 6.1, the Shire of Busselton had prepared the Caves Road Visual Management Policy to guide development of all land that is visible from Caves Road. The broad intent of this policy was "to maintain, enhance and protect the natural and rural landscape, cultural and tourist values of Caves Road and its environs".
4 The Tribunal recognised the importance of Caves Road in its entirety as an important travel route within the region but acknowledged that landscape settings and visual experiences along Caves Road would reflect changes in zonings, and therefore considered that the appropriate locality in which to consider the visual impacts of the structures on Caves Road extended from Wildwood to Metricup Roads.
5 In determining the landscape character of this section of Caves Road, the Tribunal considered that it was appropriate to acknowledge the visual sway of the wineries and associated elements and their contribution in the formulation of a perception of the landscape character of the locality. The Tribunal found that the wineries and their entry statements formed a prominent part of the visual matrix of the rural landscape and scenic quality of this section of Caves Road.
(Page 4)
6 The Tribunal was satisfied that although the structures were visible from Caves Road, they were of a size, bulk, scale, colour and height that were subordinated to the surrounding landscape and in the context of the locality, the structures were considered to be compatible with the existing visual matrix of elements that combined to form the rural character of that locality. The Tribunal found that the structures were consistent with the intent of the established planning framework and would not prejudice the orderly and proper planning of the locality.
7 The applications for review were allowed and retrospective planning consent was granted for the two structures.
Introduction
8 There are two applications for determination in these proceedings, being matters DR 82 of 2007 and DR 84 of 2007. Both matters initially arose from a deemed refusal against the Shire of Busselton's (respondent or Shire) failure to determine the applications.
9 DR 82 of 2007 relates to an application for retrospective planning consent for the erection of a structure in the existing dam. The structure is referred to as the "Free as a Bird" sculpture.
10 DR 84 of 2007 is concerned with an application for retrospective planning consent for a change of use from a winery with tasting facilities to a winery with a restaurant and reception centre, which included associated landscaping and the erection of a statue, known as the "Garden of Eden".
11 The Tribunal notes that the Shire of Busselton District Town Planning Scheme No 20 (TPS 20 or Scheme) does not contain any provisions relating to retrospective approval and that power to grant approval to "development already commenced or carried out" lies with s 164 of the Planning and Development Act 2005 (WA) (PD Act).
12 The matters initially came before the Tribunal at a directions hearing held on 4 April 2007, where the Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), invited the respondent to reconsider the reviewable decisions at this meeting of 26 April 2007.
13 In accordance with the Tribunal's orders, the matters were presented to the Council meeting of 26 April 2007. The decisions of the respondent in relation to these matters in effect consolidated the matters, as elements of the change of use application were considered in conjunction with the
(Page 5)
- erection of the structure within the dam. The respondent recommended that the retrospective development applications seeking planning consent for the erection of a structure within the dam ("Free as a Bird") and ancillary features, being the "Garden of Eden" sculpture and exotic species of vegetation in the area of the site entry, be refused for the following reasons:
"(i) The development is inconsistent with Clause[s] 13(1)(a), (c), (e), (m), (p), (q), (r), (s), and (t) of the Scheme, whereby Council shall take into consideration such matters as:
- the provision of relevant statutory and strategic documents;
- the effect of the development on the landscape or scenic quality of the land;
- the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development;
- whether adequate provision has been made for the landscaping of the land;
- the existing and likely future amenity of the neighbourhood;
- the circumstances of the case;
- public interest.
The structure within the dam is non-compliant with all of the aspects outlined above as noted in this report.
(ii) The visual impact of the structure within the dam and ancillary features on site does not uphold the policies and objectives of the 'Viticulture and Tourism' zone, whereby the scenic quality and rural ambience of transport corridors is to be maintained.
(iii) The development is inconsistent with Clause 27(2)(a) of the Shire of Busselton District Town Planning Scheme No 20 whereby development is required to be compatible with the maintenance and enhancement of the existing
- rural and scenic character. The structure within the dam does not complement the rural amenity, significant portions of vegetation have been removed and effective screening has not been installed.
- (iv) The development is inconsistent with Clause 84 of the Shire of Busselton, District Town Planning Scheme No 20 where no person shall use the land between the building setback line and the street alignment for any purpose other than a means of access, landscaping or a rural activity permitted in the zone. The structure within the dam and ancillary features do not constitute appropriate landscaping or development forward of the building setback line. Landscaping that has been installed is not consistent with the Shire's statutory provisions or adopted policies.
(v) The structure within the dam is non-compliant with the objectives of the Shire's Use of Reflective Building Materials Policy where the highly reflective golden structure is visually prominent from the Caves Road travel route and is of detriment to the existing rural amenity of the locality.
(vi) The visual impact of the structure within the dam and ancillary features are inconsistent with the Caves Road Visual Management Policy, whereby the subject site is located within Visual Management Policy Area 2, on land specified as having 'Low/Medium Visual Quality' and whereby introduced visual elements, development and changes of use are to be subordinate to the landscape pattern.
(vii) The structure within the dam and ancillary features are inconsistent with Provision 4.4 of the Caves Road Visual Management Policy, whereby development shall ensure that the public experience and enjoyment of the Caves Road Viewshed is maintained in terms of landscape character, significance, access and views.
(viii) The structure within the dam and ancillary features are inconsistent with Provision 4.5 of the Caves Road Visual Management Policy, whereby all development is to be set
- back a minimum 100m from the Caves Road reserve, unless ancillary to an established rural activity where development should not be set back less than 50m.
- (ix) The structure within the dam and ancillary features are inconsistent with Provision 4.7 of the Caves Road Visual Management Policy, whereby development shall in no way impact on the skyline as viewed from Caves Road. It is considered that the height of the structure within the dam is of detriment to the view of the skyline from Caves Road.
(x) The structure within the dam and ancillary features are inconsistent with Provision 4.8 of the Caves Road Visual Management Policy, whereby all development shall adopt low impact design, reflect local values and be constructed of material compatible with the natural characteristics and traditional settlement patterns. The design and material of the structure and ancillary feature are uncomplimentary to the rural surrounds and do not reflect the desired built form and landscape values of the Caves Road Viewshed.
(xi) The structure within the dam is inconsistent with Provision 4.12 of the Caves Road Visual Management Policy, whereby development shall comply with the Shire's Use of Reflective Building Material Policy. The structure within the dam is highly reflective and visually prominent.
(xii) The development on site is inconsistent with Provision 4.14 of the Caves Road Visual Management Policy, whereby all required landscaping shall be of species indigenous to the area. The unauthorised landscaping shall be of species indigenous to the area. The unauthorised landscaping accompanying the development on site does not represent native endemic species.
(xiii) The development is inconsistent with the LeeuwinNaturaliste Ridge State Planning Policy, PS 3.2, PS 3.3 and PS3.7 requiring development to be: responsive to local values; compatible with the natural characteristics
- and traditional settlement patterns; have due regard for the landscape integrity and value of ridge backdrops when viewed from travel route corridors; and the protections of rural character."
14 In relation to the application for retrospective planning consent for a restaurant and reception centre, the respondent recommended that planning consent be granted subject to six conditions.
15 The Tribunal notes that the correspondence informing the applicant of the respondent's decisions changes the "recommendation" of approval/refusal to an actual approval/refusal. This modification is of no material consequence to the hearing of the matters as it was agreed between the parties that only elements of the applications still in dispute were the two sculptures – "Free as a Bird" and the "Garden of Eden".
The subject land
16 The subject land is more particularly described as Lot 1130 Caves Road, Wilyabrup, being the land comprised in Certificate of Title Volume 2519 Folio 599 and is 59.21 hectares in area.
17 The subject land is located approximately 800 metres south of Johnson Road on the west side of Caves Road in Wilyabrup and has frontage to Caves Road for approximate 415 metres. Most of the land is cleared, although there is heavily vegetated ridgeline, running north-south, approximately 100 metres from Caves Road. The ridgeline is the predominant natural feature of the subject land when viewed from Caves Road. It is described, by the respondent, as forming the backdrop for the development the subject of these proceedings.
18 The low lying area, situated between Caves Road and the ridgeline, is where all the physical improvements on the subject land have occurred and includes the following:
(i) the main facilities building and associated parking which is located approximately 94 metres west of the recently widened Caves Road reserve and approximately 110 metres of the southern boundary shared with Reserve 12500;
(ii) a vineyard, located on the south-eastern periphery of the lot adjacent to Caves Road and east of the facilities building;
(Page 9)
- (iii) a 52 000 cubic metre dam situated on the eastern edge of the lot (north of the vineyard) and set back approximately 7.5 metres from Caves Road; and
(iv) a single storey dwelling and caretaker's quarters.
The structure/sculptures
19 The "Free as a Bird" sculpture is erected within the existing dam and consists of a 16.737 metre long steel beam, erected at 60 degrees to the horizontal, supporting a female figure approximately 3.0 metres high. The support beam is painted blue and the figure is gilded in 23 carat gold. The combined vertical height of the beam and the figure, above the base of the sculpture, is approximately 17.5 metres. The elevation drawings show that the proposed height of the support beam above the dam high water mark is 9.0 metres. The sculpture incorporates:
(i) a water feature at its base with several spouts elevating water streams approximately 3.0 metres high radiating out from the base; and
(ii) a light at the top of the support beam, directly below the figure.
20 The "Garden of Eden" sculpture is made of bronze and is approximately 4.5 metres high, consisting of a tree trunk and several thick branches (with no leaves) painted dark brown/black, supporting a single oversized red apple. The sculpture is located southwest of and adjacent to the entry to the subject land, and is set back approximately 7.5 metres from the Caves Road road reserve.
Planning framework
21 An extensive planning framework has been established to guide development in this locality. The relevant provisions of each of the applicable planning instruments are set out below.
Local scheme
22 The operative local town planning scheme is TPS 20, which was gazetted on 7 September 1999. TPS 20 is comprised of the Scheme Text and Scheme Maps. The Scheme creates 14 zones and 8 areas which are delineated on the Scheme Maps. The subject land is located within the "Viticulture & Tourism" zone and within the "Landscape Value" area.
(Page 10)
23 The Scheme establishes objectives and policies for each zone and requires that all development must comply with the provisions, standards and requirements contained therein.
24 The "Zone Objectives and Policies" of the "Viticulture & Tourism" zone, as set out in Table 1 are as follows:
"OBJECTIVES OF THE ZONE
(i) To provide for development and expansion of the viticultural, winemaking and associated industries, in addition to general rural pursuits, only in a manner that does not cause adverse environmental impact.
(ii) To optimise the tourism potential of viticultural activities within the Shire in a manner that will sustain those industries and not frustrate their further development but will ensure that viticulture is predominant in the combination of land uses.
(iii) To discourage ribbon development along Caves Road and other roads and to maintain the rural ambience of transport corridors generally.
POLICIES OF THE ZONE
(a) To facilitate the development of tourist facilities of a scale and nature appropriate in rural settings, including galleries, eating facilities, chalets and holiday resorts, especially in association with established viticultural and related enterprises;
(b) To achieve (a) above without prejudice to the scenic quality of land within this zone and without creating or increasing ribbon development on any road;
(c) To apply restrictions whereby an allotment proposed to be created by subdivision … minimum area necessary;
(d) To generally implement and adhere to the adopted recommendations and outcomes of the Shire of Busselton Rural Strategy as endorsed by the WA Planning Commission;
(Page 11)
- (e) To restrict the clearing of remnant vegetation and facilitate the retention and enhancement of such vegetation."
25 Clause 27 of the Scheme sets out provisions relating to the "Landscape Value" area, which are as follows:
"(1) No person shall on any land in a Landscape Value Area clear any land without the written consent of Council.
(2) The Council shall not grant consent to the clearing of land or any other development on land identified on the Scheme Maps as being within a Landscape Value Area, unless it has considered:
(a) whether the development will be compatible with the maintenance and enhancement, as far as practicable, of the existing rural and scenic character of the locality.
(b) whether the development will materially affect the wildlife refuge, significant wetland, coastal environment or any identified site containing Aboriginal archaeological relics;
(c) disturbance to the natural environment, including:
(i) visual effects of clearing for the development;
(ii) maintenance of rural character;
(iii) habitat disturbance.
(4) Before giving its consent to the erection of a building on land to which this Clause applies, the Council shall make
- an assessment as to whether it should impose conditions relating to:
- (a) the use of prescribed materials on the external surface of the building;
(b) the number, type and location of existing trees and shrubs which are to be retained and the extent of landscaping to be carried out on the site; and
(c) the siting of the proposed building.
- (5) In this Clause:
'External surfaces', in relation to a building or work, includes the external walls … and any surface of that building or work visible from the exterior of that building or work;
'Prescribed materials' means material with dark tones or dark colouring and of low reflective quality or materials which are painted or similarly treated with dark-toned or dark-coloured paint or pigment of low reflective quality."
• the provisions of the Scheme; any Statement of Planning Policy; any Policy in force under cl 103 or referred to within Sch 10 of this Scheme, applying to the land to which the development application relates (subclause (a));
• the effect of that development on the landscape and scenic quality of the locality (subclause (c));
• the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development (subclause (e));
• the size and shape of the land to which that development application relates, the siting of any building or works thereon and the area to be occupied by that development (subclause (f));
(Page 13)
- • the relationship of that development to development on adjoining land or on other land in the locality (subclause (h));
• whether adequate provision has been made for landscaping of the land to which that application relates and whether any trees or other vegetation on the land should be preserved (subclause (m));
• the existing and likely future amenity of the neighbourhood (subclause (q));
• the circumstances of the case (subclause (s)); and
• the public interest (subclause (t))."
27 Clause 14(2) of the Scheme provides authority for the Council to refuse to approve any application for planning consent or grant its approval unconditionally or subject to such conditions as it thinks fit. In determining an application, the Council is required to have regard to any matter which it is required by the Scheme to consider, to the orderly and proper planning of the locality and the preservation of the amenities of the locality.
28 Clause 84 of TSP 20 applies to the "Viticulture & Tourism" zone and specifies setback requirements for buildings and the use of land between the building setback line and the street alignment.
29 Clause 103 of the Scheme empowers the Council to make planning policies which may make provision for any matter related to the planning or development of the Scheme Area. These policies may be applied generally or in a particular class of matter or in particular classes of matters, and throughout the Scheme Area or in one or more parts of the Scheme Area. Policies prepared pursuant to the Scheme are specified in Sch 10 – "Planning Policies". Two policies, listed in Sch 10, that the respondent has identified as relevant to this review are: Use of Reflective Building Materials (April 1993) (RBM Policy); and Caves Road Visual Management Policy (February 1999) (Visual Management Policy).
Caves Road Visual Management Policy
30 The Visual Management Policy applies to all development requiring consent on all land that is visible from Caves Road between Dunsborough and the southern boundary of the Shire of Busselton.
(Page 14)
31 The broad intent of the Visual Management Policy is "to maintain, enhance and protect the natural and rural landscape, cultural and tourist values of Caves Road and its environs".
32 The aims and objectives of the policy are:
"• To maintain and enhance the visual quality of the natural and rural landscape as viewed from Caves Road.
• To retain the rural landscape as the dominant visual experience of the Caves Road Viewshed.
• To maintain the significant views experienced from Caves Road."
33 The aims and objectives are to be achieved by:
"• Ensuring appropriate forms of development that reflect the varying visual significance and sensitivity of areas as viewed from Caves Road.
• Establishing basic parameters for development within the Caves Road Viewshed.
• Establishing appropriate requirements for those proposing to develop within the Caves Road Viewshed.
• Establishing procedures and criteria for assessing development within the Caves Road Viewshed."
34 The Visual Management Policy identifies three visual management policy areas, which are based on their visual absorption capacity. The subject land is identified within "Visual Management Policy Area 2" (Policy Area 2) and designated "Low/Medium Visual Quality Land".
35 Policy Area 2 is described as "[l]andscapes … [having] a moderate visual adsorption capacity. Appropriate development will have a moderate visual impact only. Introduced visual elements will be apparent in the land but, through care design, can potential[ly] add to, rather than detract from, the visual amenity." The policy area objective for "Low/Medium Visual Quality Land" is identified as:
"[d]evelopments and/or changes of use may be visually apparent from Caves Road with careful design, but will nevertheless be subordinate to established landscape patterns."
(Page 15)
36 The Visual Management Policy sets out assessment criteria for assessing development within the various areas. Of particular relevance are:
"4.3 Development shall comply with the Policy Objectives for the Visual Management Policy Area within which it is located.
4.4 Development shall ensure that the public experience and enjoyment of the Caves Road Viewshed is maintained in terms of landscape character, significance, access and views.
4.5 All development to be set back a minimum of 100m from the Caves Road Reserve. Development ancillary to an established Rural Activity will be considered within 100m of the Caves Road Reserve only where it can clearly demonstrate that such development is consistent with the Objectives of the Policy Area and, in any case, should not be set back less than 50m …
4.7 Development shall in no way impact on the skyline as viewed from Caves Road."
37 The Visual Management Policy also addresses other more specific matters such as "Building Form and Site Design". The relevant provisions set out under this section require that:
"4.8 All development shall adopt low impact design, reflect local values and be constructed of materials compatible with the natural characteristics and traditional settlement patterns of the area.
…
4.12 Development shall comply with the Shire of Busselton's 'Use of Reflective Building Materials' Policy."
Reflective Building Materials Policy
38 The RBM Policy applies to a number of areas including land located in the "Landscape Value" area and land within 400 metres of any road identified as a "Travel Route Corridor" pursuant to Statement of Planning Policy No 6.1 Leeuwin Naturaliste Ridge Policy (SPP 6.1). The subject
(Page 16)
- land is located within both the "Landscape Value" area and on a "Travel Route Corridor", being Caves Road.
39 The RBM Policy does not support the use of highly reflective building materials in the areas to which the policy applies but provides that their use may be permitted where it can be demonstrated that the particular proposal satisfies all of the assessment criteria relevant to the specific areas.
Shire of Busselton Local Rural Planning Strategy
40 The Local Rural Planning Strategy (LRP Strategy) divides the study area into eight precincts. The subject land is located in Precinct 8 - Western Coast, which comprises the land between Caves Road and the Indian Ocean Coast, including a significant portion of LeeuwinNaturaliste National Park. The stated vision for this Precinct is to "[r]etain and conserve the natural environment and rural landscape values and character of the area in balance with limited tourism development." The various objectives established for the precinct area of particular relevance are:
"• To facilitate the ongoing expansion of rural tourism development where it will not impact on landscape, environment and other values and character of the area.
• To support tourism and other forms of development consistent with the settlement and nodal hierarchy of the LNRSPP.
• To maintain and protect the unique rural and natural landscapes and land uses and their contribution to the character of the region as a priority."
Statement of Planning Policy No 6.1 - Leeuwin Naturaliste Ridge Policy
41 SPP 6.1 was formulated as a Statement of Planning Policy under s 5AA of the Town Planning and Development Act 1928 (WA) and continues in force as a State planning policy under the PD Act: s 25. Pursuant to s 241 of the PD Act, the Tribunal is required to have due regard to any State planning policy which may affect the subject matter of an application for review.
42 SPP 6.1 identifies generic land use related topics for which Statements of Intent and Policies have been adopted. The relevant topic in this instance is "Landscape".
(Page 17)
43 Four landscape classes are identified and delineated on Figure 3 Landscape Class Map. The subject land is identified as being within two of the landscape classes; the land immediately abutting Caves Road is designated "Travel Route Corridor with Rural Landscape Significance" and a further band of land designated as "Travel Route Corridor", while the remainder of the land is shown as "General Character".
44 The relevant policy provisions relating to the subject land are:
"PS 3.2 Development must be responsive to local values, and be compatible with the natural characteristics and traditional settlement patterns of the area.
PS 3.3 Developments will have due regard for the landscape integrity and value of Ridge backdrops when viewed from the coastline, bays or Travel Route Corridors.
…
PS 3.6 In areas of Rural Landscape Significance, development should protect the rural character of the land."
45 Map 5 of the Land Use Strategy identifies different categories of preferred land use throughout the policy area. The subject land is identified within the "Agriculture Protection" category and, for the most part, designated "Principal Agriculture (Viticulture and Grazing)". The policies for this area are intended to enhance and develop agriculture in the policy area for its economic, social and landscape values.
46 Caves Road is designated as an existing Strategic Road. The land use strategy of particular relevance to Caves Road is LSU 5.2, which states:
"Development and intensification of land use that will affect views from Caves Road … will not be supported."
47 The Leeuwin-Naturaliste Ridge Statement of Planning Policy Report (LNRSPP Report) at Pt 4.3 suggests that in order for the policies of SPP 6.1 to have full effect, a combination of statutory and policy measures are required. Part 4.3 sets out measures and actions to be undertaken in order to effectively achieve implementation of SPP 6.1.
(Page 18)
48 The state and local planning framework is consistent in its approach, in that the zoning of the subject land under TPS 20 reflects the land use as identified in SPP 6.1. Further, the LNRSPP Report recommends local governments prepare and adopt a "local landscape management strategy" in "Travel Route Corridors" and in particular, that the Shire includes suitable guidelines to protect the landscape value of land along Caves Road. This has been undertaken by the Shire in the form of the Visual Management Policy.
Issues
49 The following two principal issues were identified by the parties as matters for consideration in the review:
• Whether the "Free as a Bird" sculpture within the dam and the "Garden of Eden" sculpture, associated with the restaurant and reception centre, comply with the provisions of TPS 20, Caves Road Visual Management Policy, Shire of Busselton Rural Strategy, Shire of Busselton Use of Reflective Building Materials Policy and the Leeuwin-Naturaliste Ridge State Planning Policy.
• Whether the proposed structures are consistent with the orderly and proper planning for the locality.
50 The respondent contended that the central issue in this review is the visual impact of the structures on Caves Road and whether such impact is consistent with the established planning framework, which seeks to preserve and protect the landscape value of Caves Road.
51 The respondent argued that the visual impact of the structures on Caves Road is inconsistent with the policies and objectives of the "Viticulture & Tourism" zone; cl 27 - Landscape Value Area and cl 84 - Setback Requirement of the Scheme; the Visual Management Policy; the LRP Strategy; the RBM Policy; and SPP 6.1. The respondent asserted that there is a cohesive planning framework that attributes significant weight to the need to protect the landscape and scenic quality of the locality, more particularly Caves Road and its environs. The respondent accepts that the planning framework contemplates physical development, but submits that it has to be low impact and subordinate to the landscape and scenic quality of the land itself and the locality.
52 The Tribunal had the benefit of the evidence of Mr William James, a landscape architect with considerable experience called on behalf of the
(Page 19)
- respondent, and Mr Howard Mitchell, an urban designer, environmental planner and landscape architect in private practice in Western Australia since February 1992 (and prior to that with extensive experience in the United Kingdom), called on behalf of the applicant. These experts gave their evidence jointly by reference to a joint statement.
53 The Tribunal also had the benefit of planning evidence given on behalf of the respondent by Mr Mark Close, Senior Development Planner within the statutory planning section of the Shire, and Mr Gregory Rowe, a town planner in private practice, called on behalf of the applicant. The two planners gave their evidence concurrently by reference to a joint statement of issues arising in relation to planning matters.
54 For all experts, the key issue centred on the visual impact of structures on Caves Road. Mr James and Mr Mitchell provided valuable evidence on the characterisation and landscape setting of Caves Road, the extent the structures could be viewed from Caves Road, and their views on the visual impact of the structures in context with the rural landscape setting of the locality. The planners' evidence focused primarily on an assessment of the visual impact of the structures in the context of the planning framework.
55 Mr James, in his visual assessment, considered the locality to be the broader landscape character of Caves Road which extended from Yallingup to the southern boundary of the municipality. Mr James described the composite character of Caves Roads as:
"a landscape in which the natural landscape is complemented by the mixed land use of grazing, vineyards, arts and crafts and tourism. The feature associated with these land uses, in most cases, are subordinate to the rural landscape. Where these features dominate the rural landscape there is a distinct departure from the established landscape character."
56 Mr James was at pains to point out the significance of Caves Road as a major regional scenic travel route, and the importance attached to protecting the landscape value of Caves Road. As to what level of change as viewed from Caves Road would be consistent with the relevant policies, Mr James concluded that "[t]he classification levels and objectives of the relevant policy documents suggest absolute protection or something very closely approximating this is required." The Tribunal, for reasons expressed later in this decision, does not agree with this view.
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57 Mr James estimated that the structures would be visible from Caves Road for a continuous 720 metre section, although in places the view would be intermittent. He describes the views of the structures from Caves Road as follows:
"Travelling south, the developments come into view at a distance of 30m from the northern boundary of Lot 130 (sic). They are viewed at an angle of approximately 30 degrees from the direction of travel. The developments are then in an unobscured view for the next 100m at which stage the sculpture in the dam [Free as a Bird] is at an angle of approximately 60 degree[s] from the direction of travel and the [Garden of Eden] sculpture has been passed. The view from the point south is filtered through a single line of roadside vegetation. This vegetation comprised mostly marri trees approximately 20m in height and 300mm in diameter at 1200mm above the ground. Several marri trees within the road verge close to the public entry are dead and will soon be removed, extending the length of the unobstructed view by some 30m.
Travelling north, the sculpture [Free as a Bird] first comes into view at a distance of approximately 580m, seen through the foliage and gaps in the roadside marris. At this point [Free as a Bird] is in line with the direction of travel. For the next 560m the view of [Free as a Bird] is filtered through trees. The [Garden of Eden] comes into view approximately 80m south of the northern boundary of Lot 130 (sic) at an angle of approximately 20 degrees from the direction of travel."
58 His evaluation assessed the impacts of the structures on visual aesthetic values. The methodology involved testing each element of the development against management objectives relating to landscape character and landscape significance in the context of the character of Caves Road extending from Yallingup to the southern boundary of the municipality. According to Mr James, the origin of these objectives has evolved from his use and adoption from other studies as a standard objective when looking at any sort of development in different sorts of landscape. His assessment concluded that the structures each have a low degree of conformity with visual aesthetic management objectives relating to both landscape character and landscape significance. On this assessment, he asserts that the structures do not comply with TPS 20, the Visual Management Policy, and SPP 6.1, as they are clearly recognised and visually dominant when viewed from Caves Road.
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59 Mr Mitchell, in his assessment, defined the extent of the locality as that extending from the junction of Caves Road and Wildwood Road (northern boundary) to the junction of Caves Road from Metricup Road (southern boundary).
60 He considered that Caves Road consisted of a number of subsections in terms of landscape character and considered this particular section of Caves Road to be significantly different to other areas due to the components within the landscape, being the wine industry and tourist uses. This observation is somewhat reflective of the areas zoned "Viticulture & Tourism" in TPS 20.
61 Mr Mitchell described the visual experience in this locality as follows:
"The area seen from the road varies from no more than 15 metres to approximately 1.5 kilometres, occasionally a vista opens up to allow views to approximately 3 kilometres. The seen area is contained by vegetation and topography.
The road user experiences a series of framed or enclosed views, each having a discrete character which is a variation of broad rural landscape of the area. The landscape character of the corridor therefore varies and it is this variety and combination of natural and man[-]made elements that together create the distinctive landscape character of the Caves Road area."
62 He considers the character of this landscape is defined by a mix of many different elements including: areas of pasture; areas of commercial vines; roadside native vegetation; undulating topography; man-made dams and lakes; entry wall and commercial signage; buildings occurring occasionally in the middle distance and distance, temporary flags, banners and signage; the road pavement and road signs. His assessment of this section of Caves Road is that it is essentially a highly modified rural landscape and that the existing land uses and their related signage, advertising and entry statements, prominent buildings and built form all combine to make up the existing character of this part of Caves Road.
63 In essence, the main point of difference between the landscape architect experts in defining the rural landscape is the role and relationship that the wineries and their associated elements play. It is Mr James' view that when elements such as winery and cellar door sales buildings and their associated entry statement and signage become the dominant elements in the landscape, they threaten the rural character, whereas
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- Mr Mitchell considers that all the elements combine to make up the existing rural character of this part of Caves Road, of which wineries and their associated elements are a part of the rural landscape.
64 Mr Mitchell calculated that the maximum length of visibility (visibility zone), encompassing the full spectrum of visibility from broken views through to clear views, equates to approximately 955 metres. Mr Mitchell's diagram also shows the section of Caves Road where the structures are in open view (approximately 145 metres), and the "Free as a Bird" sculpture can be viewed through the vegetation breaking the skyline (approximately 285 metres).
65 It was Mr Mitchell's view that the structures complied with the objectives of the Visual Management Policy as, although the structures could be viewed from some locations on Caves Road, they were subordinate in size, bulk, scale, colour, and height to the surrounding landscape, only being observed from areas that are very close to the property and only for a short time. He did not consider the fact that "Free as a Bird" projected above the treeline in some locations to be a significant issue as, in his opinion, "[i]t is unlikely that a road user would see the sculpture from this position, and even if they did, the view at this point is panoramic, and the proportion of the sculpture to this expansive view is insignificant".
66 The Tribunal, with the respective parties, had the benefit of a view which entailed walking the perimeter of the existing dam and journeying along Caves Road within the visibility zone to view the two structures, as well as travelling along Caves Road from Metricup Road to Wildwood Road in order to gain an appreciation of the rural landscape setting. The Tribunal, with the consent of the parties, also undertook a view on the evening of 17 August 2007 to observe the impact of the illumination of the figure on Caves Road.
67 The Tribunal recognises that Caves Road in its entirety is an important travel route within the region and that it is imperative that development along this route responds sensitively to the rural and scenic character of the locality. However, it is important to acknowledge that land areas along Caves Road have been designated various zonings under TPS 20, which includes "Viticulture & Tourism", "Agriculture", "Rural Landscape", "Rural Residential", "Residential" and areas reserved for "Recreation". It must be recognised that each of these zones has specific objectives and policies which may not result in the same intensity of development, and as such, the landscape setting and visual experiences
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- along Caves Road will be reflective of changes in zoning. Mr Mitchell, in his assessment of Caves Road, was able to distinguish a number of landscape subsets along Caves Road and Mr Close also acknowledged that land uses in the locality were reflective of the zoning as designated under TPS 20.
68 It was generally accepted that along Caves Road, between Wildwood and Metricup Roads, there was a predominance of viticulture land use and associated activities. This prevalence is no doubt a reflection of zoning. This was the section of Caves Road that Mr Mitchell identified as an appropriate locality in which to assess the structures against the landscape character of that locality. The Tribunal concurs, as this section of Caves Road is distinctive from other sections of Caves Road in terms of landscape character and zoning, and as such, is the appropriate area as the defined locality in which to consider the visual impacts of the structures.
69 It was agreed by the experts that the landscape along Caves Road between Wildwood and Metricup Roads is significantly modified from its natural state, although there is still evidence of the natural landscape in the ridgeline which forms a backdrop for the winery and its associated elements, including the two structures. It was further agreed that this section of Caves Road is essentially a modified rural landscape which includes tourist uses. As previously stated, the divergence between the landscape architects lies with the contribution the wineries and their associated elements factor in defining the character of the rural landscape of this locality. The Tribunal considers that it is only appropriate to acknowledge the visual sway of these elements and their contribution in the formulation of a perception of the landscape character of the locality, particularly as the underlying objective of the "Viticulture & Tourism" zoning is the promotion of viticulture and its associated industries. The wineries and their entry statements are clearly apparent from Caves Road and form a prominent part of the visual matrix of the rural landscape and scenic quality of this section of Caves Road.
70 The planning instruments relevant to this review seek to achieve a balance between the development and expansion of viticultural and tourist uses and the maintenance, enhancement and protection of the rural and scenic character of the landscape. It is clear that the planning instruments envisage a form of development which is of a scale and character appropriate to the rural setting that will not impinge on the scenic quality of land. These are clearly matters to which regard is to be given in the determination of an application, and are specific matters referred to in cl 13 of TPS 20 (subclauses (c), (e) and (h)).
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71 The Visual Management Policy offers some guidance as to the degree of visual effect on the landscape that may be acceptable. As the visual adsorption capacity of the landscape is considered to be moderate, development should have a moderate visual impact. It is acknowledged that development may be visually apparent from Caves Road but should be subordinate to established landscape patterns.
72 The respondent argued that the structures, due to their size, form, colour/materials and location, are dominant elements in the landscape that detract from and result in a loss of the rural character of landscape within this locality. If structures associated with wineries and other tourist uses are seen in isolation, then it might be argued the structures are inconsistent with the general intent of the planning framework. However, it is clearly the intention of TPS 20 to promote this locality for viticulture and tourist uses, and as such, the built form and activities associated with such uses will undoubtedly influence the rural landscape and character of this locality. In this particular location, there will be elements in the rural landscape that are reflective of the nature of the land uses, and as expressed by Mr Mitchell, these elements will become part of the rural character of this locality and form part of the visual experience along this section of Caves Road.
73 The proposed structures are one component of the overall development of the subject land, which comprises a vineyard, function facilities and associated car parking, caretaker's quarters, dam and landscaped gardens. It is within this context that the structures are viewed. The "Garden of Eden" sculpture, although only set back 7.5 metres from Caves Road, has minimal visual impact on Caves Road and is not considered to detract from the visual amenity or the rural landscape of the locality. The "Free as a Bird" sculpture is more visually apparent from Caves Road; however, it is considered to be subordinate in size, bulk, scale, colour and height to the surrounding landscape. In the context of the locality, the structures are considered to be compatible with the existing visual matrix of elements that combine to form the rural character along this section of Caves Road.
74 The reflectivity of the figure in the "Free as a Bird" sculpture was raised as a concern by the respondent, as the figure is gilded in 23 carat gold. The respondent asserted that the reflectivity and resulting prominence of the figure would be contrary to objectives of the Shire's RBM Policy. This policy relates to the use of materials in the construction of buildings, and an artefact such as the figure in the "Free as a Bird" sculpture is not considered to be within the contemplation of this
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- policy. Furthermore, the respondent did not produce any conclusively evidence that demonstrated that the gilded figure would cause a visual distraction and nuisance arising from the sunlight reflection and glare.
75 A further impact of the "Free as a Bird" sculpture that requires consideration is the effect on the skyline as viewed from Caves Road. It is apparent from the evidence of the experts, photographs, and from the view, that in certain locations, the structure breaks the skyline. The Visual Management Policy advocates that development shall have no impact on the skyline as viewed from Caves Road. If this provision is strictly applied, the "Free as a Bird" sculpture should not be supported. However, there are numerous examples of development along Caves Road that break the skyline. One recently approved development referred to by the applicant is the Saracen Winery building, which is located directly opposite the Laurance Winery on the eastern side of Caves Road. Although the "Free as a Bird" sculpture projects into the sky above the treeline in some locations, given the speed at which a vehicle would be travelling (90 kilometres per hour) and the scale and size of structure, the visual impact on the Caves Road viewshed would be negligible in the context of the expansive view. It is also considered doubtful that the observer would even register that the structure had impinged upon the skyline.
76 The Tribunal raised the issue of the illumination of the "Free as a Bird" sculpture during the hearing. The respondent did not consider this aspect of the structure to be an issue. Notwithstanding, the Tribunal viewed the structure on the evening of 17 August 2007 and was satisfied that the illumination of the structure did not raise any planning concerns.
77 For the above reasons, the Tribunal considers that the structures are consistent with the intent of the established planning framework for this locality and as such will not prejudice the orderly and proper planning of the locality.
Orders
78 For the above reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 26 April 2007 to refuse retrospective planning consent for the erection a structure in the dam ("Free as a Bird" sculpture) and an ancillary feature associated with the restaurant and
- reception centre ("Garden of Eden" sculpture) is set aside and a decision is substituted that retrospective planning consent is granted for the erection of a structure in the dam ("Free as a Bird" sculpture) and an ancillary feature associated with the restaurant and reception centre ("Garden of Eden" sculpture) on Lot 1130 Caves Road, Wilyabrup as shown on the following plans:
- (i) Site Plan Drawing No a310 _cellar door plan dated 10 October 2006;
(ii) Drawing No 20540 dated Jan 2005 (General Notes and related structural engineering plans x 2) drawn by David Norrish Consulting Civil and Structure Engineer; and
(iii) GE-1839-01-SE Sheets SN1 and SO1 drawn by TGM Engineers, Surveyors & Planners.
- I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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