QUINN and CITY OF MANDURAH

[2010] WASAT 57

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   QUINN and CITY OF MANDURAH [2010] WASAT 57

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   8 APRIL 2010

DELIVERED          :   20 APRIL 2010

FILE NO/S:   DR 507 of 2009

BETWEEN:   JOHN QUINN

Applicant

AND

CITY OF MANDURAH
Respondent

MEMBERS TCO PTY LTD
THE CUT MEMBERS PTY LTD
Intervenors

Catchwords:

Town planning ­ Outline Development Plan ­ Modification of Outline Development Plan ­ Golf course ­ Exclusion of two areas from golf course and designation of areas as Residential R30 and Residential R20 respectively ­ Areas include golf cart path connecting eighth and ninth holes in a landscaped setting and vegetated dune mound traversed by public access path ­ Orderly and proper planning ­ Landscape and scenic quality ­ Operation of golf course ­ Public safety ­ Risk of being hit by golf balls while on public path

Legislation:

City of Mandurah Town Planning Scheme No 3, cl 4.9.1, cl 4.9.2.2, cl 7.11.2.1(g)(iii), cl 7.11.3.12, cl 7.11.3.17
State Administrative Tribunal Act 2004 (WA), s 37(3)

Result:

Modification of Port Bouvard Southport Precinct Outline Development Plan refused

Category:    B

Representation:

Counsel:

Applicant:     Mr PG McGowan

Respondent:     Mr CA Slarke

Intervenors                   :     Mr DRJ Thwaites (Director)

Solicitors:

Applicant:     Greg Rowe & Associates (Town Planners)

Respondent:     McLeods

Intervenors                   :     Self-represented

Case(s) referred to in decision(s):

Hocking Land Company Pty Ltd and City of Wanneroo [2009] WASAT 139

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This case concerned a proposal to modify the Port Bouvard Southport Precinct Outline Development Plan to remove two areas from The Cut Golf Course and designate these areas as Residential R30 and Residential R20.  One of the areas plays an essential role in the functioning of the golf course as constructed, because it provides the only means of access for golfers between the eighth and ninth holes.  The second area comprises half of a relatively significant and prominent vegetated dune mound that includes a public accessway.

2. The Tribunal determined that approval of the proposed modifications to the Port Bouvard Southport Precinct Outline Development Plan would not be appropriate as it would not be consistent with orderly and proper planning.  In particular, it would be contrary to orderly and proper planning for the essential access between the eighth and ninth holes and its landscaped environs to be excluded from the golf course and designated Residential R30.  It would also result in the inappropriate removal or compromising of native vegetation.  The proposed modification in relation to the second area is likely to result in an adverse impact on the landscape and scenic qualities of the area.  Furthermore, the likely reorientation of the public accessway is likely to increase the risk to public safety.

3. The City of Mandurah's decision to refuse to modify the Port Bouvard Southport Precinct Outline Development Plan was affirmed.

Introduction

1. The Port Bouvard Southport Precinct of Mandurah, which is bounded by the Dawesville Channel to the north, the Indian Ocean to the west and Old Coast Road to the east, comprises a residential golf course estate that has been progressively developed since the 1990s.  The golf course at Southport is known as The Cut Golf Course.  The Cut Golf Course is a private golf course at which members of the public are also permitted to play.  The residential component of the Southport Precinct includes approximately 360 single residential lots, 30 townhouses in a survey­strata complex and 67 apartments in an eight storey building.  There is also a vacant multi­unit residential site and a vacant resort site adjacent to the golf course clubhouse.  The golf course surrounds part of the residential estate and adjoins or is adjacent to the remainder of the estate.

2. The Southport Precinct is zoned Urban Development under the City of Mandurah Town Planning Scheme No 3 (TPS 3 or Scheme).  Clause 4.9.1 of TPS 3 describes the purpose and intent of the Urban Development zone as follows:

   The Urban Development Zone is intended to provide for future residential and urban related development after comprehensive planning of the land has been carried out resulting in an approved Outline Development Plan.

3. In October 2004, the City of Mandurah (City or Council) approved the Port Bouvard Southport Precinct Outline Development Plan (ODP) under the Scheme.  Clause 4.9.2.2 of TPS 3 states that:

   Where an Outline Development Plan imposes a classification on the land include[ed] in it by reference to reserves, zones or the Residential Design Codes, the provisions of an Outline Development Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme.

4. Clause 7.11.3.12 of TPS 3 enables an Outline Development Plan to be modified.  In March 2009, with the consent of Vive Golf Pty Ltd (Vive), the owner of the golf course, Mr John Quinn applied to the City to modify the OPD by removing two areas, known as Site 1 and Site 2, from the golf course and designating these areas as Residential R40 and Residential R25, respectively.  Vive agreed to sell Site 1 and Site 2 to YourClaim Pty Ltd (YourClaim), a company controlled by Mr Quinn, on condition that subdivision approval is granted by the Western Australian Planning Commission (Commission) to excise Site 1 and Site 2 from the golf course land by 1 June 2010.  Subsequently, Mr Quinn amended the application to modify the ODP to designate Site 1 as Residential R30 and Site 2 as Residential R20.

5. The City advertised the proposed amended modified ODP for public comment and received 20 written objections and a petition of 49 signatures opposing the proposal.  Following consideration of the submissions, and Mr Quinn's consultant town planner's response, the City's Director Sustainable Development recommended in a report in November 2009 that the Council should grant approval for the proposal.  However, at its meeting held on 24 November 2009, the Council resolved not to approve the modified ODP for the following reasons:

   1.The proposal will detract from the amenity of the landscape and scenic quality of the locality;

   2.The proposal will create an adverse impact on the existing and future amenity of the neighbourhood; and

   3.The propos[ed] modification is not consistent with the proper and orderly planning of the area.

6. On 23 December 2009, Mr Quinn sought review by the Tribunal, in accordance with cl 7.11.3.17 of TPS 3, of the City's decision.

7. At some point between the lodgement of the application to modify the ODP by Mr Quinn and its determination by the City, RMBL Investments Pty Ltd (RMBL), which held a mortgage over the golf course property, entered into possession of the land.  RMBL subsequently agreed to sell the golf course property to Members TCO Pty Ltd (MTCO) subject to YourClaim's interest.  MTCO and YourClaim have entered into a deed under which MTCO has agreed to transfer Site 1 and Site 2 to YourClaim if subdivision approval is granted by the Commission by 1 June 2010.

8. However, MTCO is opposed to the proposed modification of the ODP and the proposed subdivision to enable YourClaim to acquire Site 1 and Site 2. On 26 February 2010, the Tribunal granted leave, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA), to MTCO and The Cut Members Pty Ltd (TCM), which operates The Cut Golf Course, to intervene in the proceeding 'in relation to the public safety impact of the relocation of a cart path and crossover in and adjacent to Site 1 and the relocation of the public access pathway in and adjacent to Site 2'. The leave was made subject to the condition that 'the only evidence to be presented on behalf of the intervenors is to be from Mr Shortland­Jones, operations manager of The Cut Golf Course, or another suitably experienced employee of the golf course manager'.

Issues for determination

1. In Hocking Land Company Pty Ltd and City of Wanneroo [2009] WASAT 139 at [41] and [43], the Tribunal made the following observations which are also apposite in this case:

   [In] this case, the Tribunal is charged by the relevant legislation to be a strategic planning body. …

   [T]he relevant test for determining whether to amend a Structure Plan [and, equally an Outline Development Plan] under the Scheme is whether it would be appropriate to do so, having regard to all relevant provisions of the Scheme and all relevant planning considerations.

2. Specifically, Mr Quinn and the City agreed that the following issue arises for determination in this review:

   Whether the proposal to modify the ODP is consistent with orderly and proper planning, having particular regard to:

   a)the reasonable expectations concerning the use to which the subject land will be put;

   b)the effect on the landscape and scenic qualities of the area; and

   c)the impact on the amenity of the locality.

3. In addition, as noted earlier, MTCO and TCM were granted leave to intervene in the proceeding in relation to 'the public safety impact of the relocation of the cart path and crossover in and adjacent to Site 1 and the relocation of the public access pathway in and adjacent to Site 2'.  The golf cart path and crossover in and adjacent to Site 1 and the public access pathway in and adjacent to Site 2 are discussed below.  Although the proposed modification of the ODP does not in itself relocate the golf cart path and crossover in and adjacent to Site 1 or the public access pathway in and adjacent to Site 2, as Mr Alan Stewart, a consultant town planner who gave evidence on behalf of Mr Quinn, agreed, it is likely that approval of the proposed modification would result in changes to these features.  The likely changes are discussed in the analysis below.

Site 1

1. Site 1 is an irregularly shaped parcel of land located in the eastern part of the ODP area and bounded by Lakeway Retreat to the west, Southport Boulevard to the north and Old Coast Road to the east.  It is located between the green of the eighth hole of the golf course to its west and the tee of the ninth hole of the golf course to its south.  Site 1 has an area of approximately 2,350 square metres and is generally flat with the exception of an embankment at the northern end adjacent to Southport Boulevard.  The area adjoining the eastern boundary of Site 1 forms part of the Old Coast Road road reserve and rises steeply, in the order of approximately 7 metres to 8 metres, to the road surface of Old Coast Road to the east.

2. Site 1 includes a paved golf cart path that enters the land in its north­western part via a crossover across Lakeway Retreat from the eighth hole of the golf course to the west and then proceeds south­east and south through Site 1.  The golf cart path exits Site 1 centrally at its southern boundary, which is a short distance to the north of the tee of the ninth hole of the golf course.  The golf cart path is located in a landscaped setting comprising shrubs and low height species of native vegetation generally planted at the time that the residential golf estate was established supplementing then existing native vegetation.

3. As Mr John Meggitt, a consultant town planner who gave evidence on behalf of the City, said, Site 1 is an 'important part of the fabric of the golf course environs and the estate generally'.  Site 1 plays an essential role in the functioning of the golf course as constructed, because it provides the only means of access for golfers between the eighth and ninth holes.  Mr Grant Shortland­Jones, who is employed by TCM as the Operations Manager of The Cut Golf Course, gave evidence that the golf cart track is traversed by approximately 2,200 golf carts per month or approximately 70 golf carts per day, mostly travelling in a north­south direction through Site 2, but sometimes in the opposite direction or both ways.  Furthermore, the accessway exists in an established native landscape environment which, as Mr Meggitt observed, 'provides a consistent and coherent landscape environment that builds on the character of coastal native vegetation'.

4. As noted earlier, the proposed modification to the ODP would exclude Site 1 from the golf course and designate it as Residential R30.  Mr Quinn submitted various site concept plans indicating potential residential lot layouts within Site 1 and potential alterations to the route of the golf cart path through and adjacent to Site 1.  The site concept plans do not form part of the modification application, but rather are indicative plans of potential scenarios for consideration at the subdivision and development stages.  Nevertheless, Mr Stewart gave evidence that, while there would be a variety of potential options for the route of the golf cart path in and adjacent to Site 1 if the designation of that land were changed to 'Residential R30', the most desirable and appropriate route for the golf cart path would be for it to continue to enter Site 1 via the existing crossing of Lakeway Retreat in the north­western part of Site 1, maintain the existing route through the northern and central parts of the site and then be reoriented in its southernmost section to run parallel to the south­western boundary of the site.  Mr Stewart suggested that, in its southernmost section where it would adjoin a single house, the golf cart path should be located within a 9 metre wide landscaped strip.  The reorientation of the golf cart path in the southern part of Site 1 would require the route to the ninth hole on the remaining golf course land to the south to be moved slightly to the west.  The Tribunal concurs with Mr Stewart's evidence that this would be the most sensible and likely route of the golf cart path if the present application for modification of the ODP were approved.  Other potential options shown on site concept plans which would require golf carts to use pathways on the Lakeway Retreat road reserve would not be acceptable planning outcomes, because they would necessitate the removal of native vegetation in the road reserve and give rise to public safety concerns owing to conflicts between golf carts and pedestrians.

5. Mr Stewart considered that Site 1 is 'relatively isolated from the golf course playing surface and [does] not make a significant contribution to the overall setting of the golf course'.  While Mr Stewart accepted that the continuing use of Site 1 for access between the eighth and ninth holes of the golf course gave rise to a 'design challenge', he considered that low scale medium density development on Site 1 in accordance with a Residential R30 designation is 'achievable'.  Mr Stewart suggested that a condition could be imposed on the approval of the modified ODP to require a Detailed Area Plan to be prepared as a condition of subdivision approval in order to meet the design challenge.  Clause 7.11.2.1(g)(iii) of TPS 3 contemplates that appropriate details of an ODP can include 'an indication as to the location of Detailed Area Plans'.

6. In contrast, Mr Meggitt considered that Site 1 has been historically designated and used as a 'functional landscape[d] part of the golf course and as part of the landscaped route used by pedestrians and golf buggies'.  Mr Meggitt gave evidence that 'to alter the functioning of [Site 1] is not consistent with orderly and proper planning'.  While Mr Meggitt accepted that legal access for golfers across Site 1 could be maintained by requiring the registration of an easement on the title as a condition of subdivision approval, he said that the proposed modification of the ODP would introduce problems 'from a practical point of view'.  In particular, Mr Meggitt envisaged that there might be conflicts from time to time by, for example, residents or visitors of the residential strata lots parking vehicles or boats across the golf cart path.  Mr Meggitt also suggested that the future owners of the residential strata lots would not have an incentive to maintain the landscaped environment of the golf cart path.

7. The Tribunal accepts Mr Meggitt's evidence.  Site 1 substantially comprises the golf cart path and its landscaped environs.  While the southern most part of the golf cart path would likely be reoriented closer to the south­western boundary, a substantial part of the property would continue to form an essential component of the golf course.  As Mr Meggitt said, it would be contrary to orderly and proper planning for an area that forms an essential component of the golf course to be excluded from the golf course and rather designated as Residential R30 under the ODP.  The practical problems quite reasonably envisaged by Mr Meggitt serve to highlight the inappropriateness, from a planning perspective, of an area that forms an essential component of the golf course being classified as residential under the ODP.

8. Furthermore, the landscaped environs of the golf cart path, part of which would necessarily be removed for residential development and part of which would, as contemplated by Mr Meggitt, be compromised by the conflicts between residential and golf course uses, contribute significantly to the experience of golfers and the overall landscape and scenic qualities of the golf course and area.  The landscaping within Site 1 provides, as Mr Meggitt said, a consistent and coherent landscape environment that builds on the character of coastal native vegetation.  The removal of landscaping in this area would, to quote Mr Meggitt, 'diminish the scenic quality of the immediate area and dilute the overall landscape character of the estate'.

9. Accordingly, as Mr Meggitt suggested and as the City contended, it would not be appropriate to modify the ODP in relation to Site 1 as proposed, as the modification would be contrary to orderly and proper planning.  Rather, the appropriate designation of Site 1 in the ODP is its current designation as a component of the golf course.

Site 2

1. Site 2 is situated in the north­western part of the golf course to the immediate north­east of the fourth green and to the north of the fifth tee.  On its eastern side, Site 2 adjoins a strip of properties designated Residential R20 under the ODP that front Southport Boulevard to the north and adjoin the northern part of the golf course (the fifth hole) to the south.  The northern side of Southport Boulevard also comprises residential lots designated Residential R20 under the ODP.  There are residential lots directly across Southport Boulevard from Site 2 and the residential lots continue for a distance to the west.

2. Site 2 has an area of approximately 900 square metres and comprises the northern half of a vegetated dune mound.  Site 2 rises by approximately 6.5 metres, from approximately 15.5 metres AHD adjoining Southport Boulevard to the north to approximately 22 metres AHD at its southern boundary with the remaining golf course land, over a depth of approximately 28 metres.  Most, although not all, of the highest part of the dune mound is located to the south of Site 2 on land that would remain designated as part of the golf course under the modified ODP.  Most of the vegetation on the dune mound is located on the part of the mound that is not within Site 2.

3. The western part of Site 2 comprises the northern end of a public access easement providing access through the golf course from Southport Boulevard in the north to a foreshore reserve located between the northern part of the golf course and the Indian Ocean and to the part of the residential estate that is surrounded by the golf course.  The constructed public footpath in Site 2 diverges from the route of the public access easement about halfway through the depth of Site 2 and snakes to the north­east through most of the width of Site 2 to meet Southport Boulevard adjoining the north­eastern part of Site 2.  It appears, as contemplated by Mr Meggitt, that the constructed public footpath diverges from the public access easement so as to enable a more gentle grade of descent to Southport Boulevard.

1. As Mr Meggitt observed, the vegetated dune mound on and adjoining  Site 2 is 'quite a prominent point in the viewscape looking in a northerly direction' from the public access path and the residential properties in the north­western part of the golf course estate.  As Mr Meggitt explained, this is because the high point of the mound connects to the horizon in the distance.  As Mr Meggitt said, one's eye is therefore drawn to this location.

2. As noted earlier, the proposed modification to the ODP would exclude Site 2 from the golf course and designate it as Residential R20 under the ODP.  While the determination of site levels and the design of houses for Site 2 would be determined at the subdivision and development stages, Mr Stewart helpfully provided photo montages to give an indication of the visual impact of single storey and two storey dwellings on Site 2.  For the purposes of the photo montages, Mr Stewart made the sensible assumption that the site levels of the lots in Site 2 would be the same as the site level of the adjoining residential lot to the east.  While Southport Boulevard and consequently residential lots to the east of Site 2 progressively rise from east to west, Southport Boulevard adjoining the site and the property immediately to the east is relatively flat.  The photo montages demonstrate that, although the existing dune mound and vegetation to the south of Site 2 will assist in screening future houses on that site to some extent, given the relative prominence of the mound when viewed from the south, buildings on Site 2 are likely to have a detrimental impact in terms of the landscape and scenic qualities of the area.  The photo montages show that even single storey buildings would frame the mound to the right and sit directly above the top of the mound.  Furthermore, as Mr Meggitt said, two storey development in this area is a reasonable expectation.  The photo montages show that two storey development would dominate the relatively significant and prominent natural feature of the landscaped mound in a manner that would be inappropriate and unacceptable.  As Mr Meggitt colourfully put it, two storey development on Site 2 would create 'sort of like the pimple on the top; it will be the distinctive feature in the line of sight'.

3. The planning experts agreed that, if the proposed modification of the ODP were approved, it is likely that the public footpath and the public access easement would have to be relocated.  Mr Stewart said that while detailed design would be subject to engineering advice and consideration at the subdivision and development stages, a logical option would be to extend the footpath as close to Southport Boulevard as possible at a gentle grade and then orient the path to the west to provide for universal access at a gentle grade.  Although the path would, therefore, project towards the area to the north­east of the fourth green, Mr Stewart considered that it will not give rise to any additional public safety concern, because the path would descend and be lower than the green and the vegetation to its north, and any remaining concerns could be addressed by fencing.

4. Mr Meggitt disagreed with Mr Stewart.  Mr Meggitt considered that 'there is a logic as to why the path currently works its way around in an easterly direction away from the golf course to avoid the potential of wayward balls'.  Mr Meggitt said that the reorientation of the public footpath would introduce 'a level of danger' and is therefore 'not as successful and desirable as the existing pathway'.

5. Mr Shortland­ones explained that the 4th hole of a golf course is a long par 3 with an elevated tee which is exposed to strong prevailing winds blowing from the south­west left to right.  He said that 'golfers, especially those unfamiliar with the hole, tend to over­hit the ball and the wind carries it to the right with the result that many golf balls are struck long and to the right'.  Mr Shortland­Jones, therefore, considered that 'the proposed relocation of this path will substantially increase the risk to persons using it'.  When he was cross­examined about other pathways or houses that are located a similar distance from the edge of the green of other holes as would be the likely relocated path if the proposed ODP modification were approved, Mr Shortland­Jones said that 'you are not comparing apples with apples', because distance is only part of the equation.  Other significant issues in relation to the flight of golf balls are the elevation of the tee and the prevailing wind.  Mr Shortland­Jones explained that:

   So while the distances are the same, you can't compare the two because [in] one [case] the ball is going to carry a lot further.  And that is also not saying that we don't have issues with balls on the 6th hole going over the fence into that house.  Numerous balls have.

6. Having regard to Mr Shortland­Jones' and Mr Meggitt's evidence, the Tribunal finds that approval of the proposed modification of the ODP in relation to Site 2 is likely to result in an increased risk to public safety by the necessary reorientation of the public footpath towards the area to the north­east of the fourth green of the golf course.  While the path is likely to descend and be lower than the green and vegetation to its north, the physical circumstances of the hole and of the prevailing wind are such that golf balls are likely to descend in the area of the reoriented footpath.  Short of a cage­type fence to protect the public, which would be inappropriate from a visual amenity perspective, the increased risk would not be reasonably mitigated.

7. In his closing submissions, Mr PG McGowan of counsel suggested that Site 2 would provide the 'logical and consistent end' of residential development on the southern side of Southport Boulevard.  Having regard to the likely impact of residential development on Site 2 on the landscape and scenic qualities of the area and the likely increase in risk to public safety from the reorientation of the public footpath and public access easement to the west, the Tribunal does not agree.   Approval of the proposed modification to the ODP in relation to Site 2 would not be consistent with orderly and proper planning and, hence, would not be appropriate strategic planning of that site.  Rather, as Mr Meggitt suggested and as Mr CA Slarke, counsel for the City, submitted, the appropriate strategic planning is for Site 2 to remain as part of the golf course land and continue to serve its important functions of providing public access through the golf course and an appropriate landscape and scenic setting for the golf course.

Conclusion

1. While an approved Outline Development Plan is to reflect comprehensive planning of land zoned Urban Development under TPS 3 (see cl 4.9.1), the Scheme contemplates that an approved Outline Development Plan may be modified (see cl 7.11.3.12).  As Mr McGowan pointed out on behalf of Mr Quinn, the ODP has been previously modified.  In particular, there were changes to the location of residential lots in the vicinity of Site 1 and Site 2.

2. However, in order to modify an approved Outline Development Plan, the Council, or the Tribunal on review, must be satisfied that it would be appropriate to do so, having regard to all relevant Scheme provisions and planning considerations.  The Tribunal considers that approval of the proposed modifications to the ODP would not be appropriate as they would not be consistent with orderly and proper planning.

3. Site 1 forms an essential component of the golf course as constructed, because it provides the access between the eighth and ninth holes.  The access is provided in a landscaped setting that is part of a consistent and coherent landscape environment building on the character of coastal native vegetation and contributes positively to the experience of golfers.  It would be contrary to orderly and proper planning for this essential access and its landscaped environs to be excluded from the golf course and designated as Residential R30.  The proposed modification in relation to Site 1 would also result in the inappropriate removal or compromising of native vegetation.

4. The proposed modification in Site 2 is likely to result in an adverse impact on the landscape and scenic qualities of the area.  The likely reorientation of the pedestrian footpath and public access easement is likely to increase the risk to public safety.

5. The City's decision to refuse to approve the proposed modifications to the ODP should be affirmed.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The decision made by the respondent on 24 November 2009 not to approve proposed modifications to the Port Bouvard Southport Precinct Outline Development Plan is affirmed.

I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER