Rigg and Western Australian Planning Commission - [2017] WASAT 19

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: RIGG and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 19

MEMBER: MS D QUINLAN (MEMBER)

HEARD: 31 OCTOBER AND 1 TO 2 NOVEMBER 2016

DELIVERED : 25 JANUARY 2017

FILE NO/S: DR 100 of 2016

BETWEEN: RICHARD ANDREW RIGG
RAYMOND HENRI THEODOR FORMA
ANN ELIZABETH FORMA
PHILLIP MALCOLM PAVY
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Three lot survey strata subdivision Purple Title Conservation Extreme bushfire hazard area Whether bushfire risk can be managed One publicly available evacuation route Vegetation survey insufficient Insufficient certainty as to proposed building envelope

Legislation:

City of Busselton Local Planning Scheme No 21, cl 4.2.10, cl 4.10, cl 4.11, cl 4.12, cl 4.14, cl 5.29, cl 5.30.2, cl 5.32.4, cl 5.36, Table 1
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Pt 10A, Sch 2 cl 78C, cl 78D
Planning and Development Act 2005 (WA), s 138(3)(c), s 251(1), s 241(3)

Result:

Application for review dismissed and decision of respondent affirmed

Summary of Tribunal's decision:

The applicants sought a review of the respondent's refusal to allow a three lot survey strata subdivision of Lot 4082 Tilly Road, Yallingup (subject site) into three survey strata lots of 16.21 hectares each. The subject site is owned by the applicants in three equal shares by a deed of agreement which provides for a private arrangement for the exclusive use of the land also known as 'purple title'.
The Tribunal accepted the view of Mr Parker that no bushfire management plan could acceptably manage the bushfire risk at the subject site because of the inherent risks associated with the subject site that cannot be changed, in particular the extent of density of vegetation at the subject site and the LeeuwinNaturaliste National Park bordering the subject site as well as the lack of two publicly available evacuation routes.
Having regard to the planning framework, the evidence, the substantial merits of the proposed subdivision and the discretion that the Tribunal may exercise, the Tribunal concluded that the correct and preferable decision was to refuse the subdivision proposal. In particular, the Tribunal concluded that the subdivision proposal should be refused based on the following:
a)the Tribunal was unable to make appropriate findings in relation to conservation issues which arose from the subdivision proposal on the information presently available in the flora and fauna survey, in particular in relation to the lack of certainty and finality as to the proposed building footprint and building envelope for the proposed Lot 3; and
b)the approval would result in an intensification of land use, effectively meaning that more people could be occupying the subject site at any given time, which is unacceptable given the extreme bushfire risk at the subject site which cannot be appropriately managed in particular as to the single evacuation route from the subject site in the event of a bushfire emergency.

There were a number of issues that the parties raised as issues in dispute. These issues were not necessary to be determined because the Tribunal was of the view that the issues identified above were, combined, so significant as to warrant refusal of the subdivision proposal without need for consideration of the further issues raised in dispute between the parties.

Category: B

Representation:

Counsel:

Applicants: Mr A Sharpe and Ms J Hamdorf
Respondent: Dr S Willey and Ms J Berry

Solicitors:

Applicants: Glen McLeod Legal
Respondent: State Solicitor's Office

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

Bingwa and Western Australian Planning Commission [2007] WASAT 204
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 10 December 2015, Richard Rigg, Raymond Forma, Ann Forma and Phillip Pavy (applicants) made an application to the Western Australian Planning Commission (respondent or WAPC) for a survey strata subdivision of Lot 4082 Tilly Road, Yallingup (subject site) into three survey strata lots of 16.21 hectares each (original proposed subdivision).
The subject site is currently owned by the applicants in three equal shares by a deed of agreement which provides for a private arrangement for the use of the land. This is also known as 'purple title'. Pursuant to the 'purple title' each of the applicants exclusively occupies their proposed lot. Mr Pavy occupies proposed Lot 1, Mr Rigg occupies proposed Lot 2 and Raymond and Ann Forma occupy proposed Lot 3.
On 8 March 2016, the respondent refused the original proposed subdivision for reasons which can be summarised as relating to conservation, a presumption against further subdivision in the 'Ridge Landscape Amenity Area' provisions of the State Planning Policy 6.1 LeeuwinNaturaliste Ridge (SPP 6.1) and a failure to adequately address or mitigate bushfire risk.
On 5 April 2016, the applicants sought a review of the respondent's refusal in the Tribunal pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).

The subdivision proposal

In accordance with orders made by the Tribunal, on 19 September 2016 the applicants filed an amended application for survey strata subdivision. At the commencement of the hearing on 31 October 2016, the applicants sought leave to rely on a revised plan of subdivision (revised plan) which responded to the respondent's draft without prejudice conditions and which more clearly identified the subdivision proposal, in particular proposed Lot 3 and its existing 'sheds' with the one to the north being retained and the other in the middle of the proposed Lot 3 removed. The revised plan also more clearly indicated the proposed building footprint (of 225m²) and envelope (of 1000m²) of the proposed new dwelling on Lot 3.
The respondent did not oppose the revised plan being relied upon by the applicants as the proposed subdivision plan.
The applicants made a concession in closing submissions as to the without prejudice conditions that could be imposed if approval was granted in order to address some of the issues raised by the evidence of the experts during the hearing. In particular, the applicants agreed to conditions concerning the 'sheds' that would ultimately result in both 'sheds' on proposed Lot 3 being removed.
Therefore, the proposed survey strata subdivision to be determined by the Tribunal is for three triangle shaped survey strata lots of 16.21 hectares each with only one building envelope. The building envelope on proposed Lot 3 is proposed to comprise a 225m² footprint and a 1000m² building envelope (proposed subdivision or subdivision proposal).

Subject site and locality

The subject site and locality can be described as follows:
a)is located at Lot 4082 Tilly Road, Yallingup within the City of Busselton (City);
b)has a total area of approximately 48.6508 hectares;
c)is triangular in shape;
d)is bound by Tilly Road to the northeast, Quinninup Road to the southeast, the LeeuwinNaturaliste National Park to the west and farming land to the east; and
e)is located in an area that is densely vegetated and which is considered to be an extreme bushfire hazard area.
The dwellings and outbuildings on the subject site can be described as follows:
a)Mr Rigg's dwelling on proposed Lot 2 is the permissible dwelling and resembles a traditional rural dwelling with associated outbuildings;
b)Mr Pavy's dwelling on proposed Lot 1 has nonconforming use rights and comprises a small wooden cabin in need of maintenance and repair surrounded by other outbuildings including a large shed; and
c)Mr and Mrs Forma's 'sheds' on proposed Lot 3 are significant and comprise a 'shed' in the middle of proposed Lot 3 that has been occupied in the past for many years as a dwelling for a caretaker and a 'shed' in the northern corner which better resembles a dwelling. Both of these 'sheds' have been to varying degrees decommissioned as dwellings due to recent compliance action taken by the City.

Site view

At the commencement of the hearing, the Tribunal had the benefit of a site view where the Tribunal inspected the subject site and the locality which included in particular:
a)the existing dwellings and outbuildings on all three proposed lots;
b)the existing boundaries for the 'purple title' which mirror the boundaries of the proposed subdivision;
c)the proposed building envelope for proposed Lot 3 where a recent bush fire had affected the present extent of flora;
d)the proposed sole egress from the subject site onto Quinninup Road at its intersection with Tilly Road; and
e)the significant extent of existing vegetation on the subject site and the neighbouring LeeuwinNaturaliste National Park.

Planning Framework

The Tribunal concurs with the respondent's submission in closing that the three predominant planning instruments that arise for consideration in this matter apart from the PD Act are: the City of Busselton Local Planning Scheme No 21 (LPS 21); State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7); and SPP 6.1.

LPS 21

The subject site and the land to the north of the subject site are both zoned 'Conservation' under LPS 21. The LeeuwinNaturaliste National Park immediately to the west of the subject site is reserved for National Park. The land surrounding the subject site to the east and south is zoned 'Agriculture' under LPS 21.
Clause 4.2.10 of LPS 21 which is specific for the Conservation zone provides:
Objective
To restrict the type and scale of development which will be considered on lands possessing special aesthetic, ecological or conservation values to those compatible with such environments.
Policies
(a)To allow development only where
(i)it can be demonstrated that such development can be carried out in a manner that minimises risks from natural hazards, functions efficiently and does not detract from the scenic quality of the land; and
(ii)such development is unlikely to have a significant detrimental effect on the growth of native plant communities, the survival of native wildlife populations and the provision and quality of habitats for both indigenous and migratory species.
(b)In satisfying (a) above, there is a general presumption that development shall be in a clustered form.
(c)To support subdivision only where
(i)there is no detrimental impact on the aesthetic, conservation or ecological values of the land and where the objective of retention of these values of the land in perpetuity will be achieved;
(ii)for a lot 40 hectares or greater at 7 September 1999, subdivision based on a ratio of one lot per 20 hectares, preferably in a clustered form;
(iii)for a lot less than 40 hectares at 7 September 1999, subdivision of one additional lot, preferably in a clustered form; and
(iv)consistent with State Planning Policy No. 6.1 LeeuwinNaturaliste Ridge where applicable.
(d)To prohibit the clearing of any vegetation on the land, unless required for fire breaks, dwellings or associated outbuildings within defined building envelopes, or to allow for vehicular access to such buildings.
Table 1 Zoning Table of LPS 21 provides that in the Conservation zone that a 'Single House' is listed as a 'P' use, meaning one single house is permitted. More than one single house on a lot is classified under LPS 21 as a 'Grouped Dwelling' which is an 'X' use in the Conservation zone, meaning more than one single house is not permitted.
It was common ground between the parties that the single house on Mr Rigg's proposed Lot 2 is the permitted dwelling under LPS 21 at the subject site. Mr Pavy's cabin on proposed Lot 1 has nonconforming use rights as a dwelling under LPS 21. The two 'sheds' on Mr and Mrs Forma's proposed Lot 3 are not permitted to exist as dwellings under LPS 21. Presently, Mr and Mrs Forma only have camping rights as owners of proposed Lot 3 which results in them only being permitted to camp overnight on the property three nights a month.
Clause 4.10 of LPS 21 provides that nonconforming uses may continue as follows:
Except as otherwise provided in the Scheme, no provision of the Scheme is to be taken to prevent
(a)the continued use of any land for the purpose for which it was being lawfully used immediately prior to the Gazettal date of the Scheme or an amendment to the Scheme (as the case may be); or
(b)the carrying out of any development on that land for which, immediately prior to the Gazettal date of the Scheme or an amendment to the Scheme (as the case may be), an approval or approvals, lawfully required to authorize [sic] the development to be carried out, were duly obtained and are current.
Note: 'Land' has the same meaning as in the Planning and Development Act and includes houses, buildings and other works and structures.
Clause 4.11 of LPS 21 provides that a person must not alter, extend or add to a nonconforming use without first having applied for and obtained planning approval under LPS 21. Clause 4.12 of LPS 21 provides that where a nonconforming use has been discontinued for a period of 12 months the land must not be used after that time otherwise than in conformity with LPS 21. Clause 4.14 of LPS 21 provides that if a building used for a nonconforming use is destroyed to 75% or more of its value, the building cannot be repaired, rebuilt, altered or added to for the purpose being used for a nonconforming use, except with the planning approval of the City.
Clause 5.29 of LPS 21 provides for fire management in rural areas. Clause 5.29 requires a fire management plan to be approved by the City and implemented prior to subdivision, and thereafter its requirements should be maintained to the satisfaction of the City. Clause 5.29 also provides specific to the Conservation and Bushland Protection zones that fire management plans must ensure minimal disturbance to vegetation, wetlands and fauna and generally be consistent with the conservation values of the land.
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in Sch 2 a number of provisions which are deemed to be included in the local planning scheme text (Deemed Provisions). Relevant to these proceedings is Pt 10A - Bushfire risk management of Sch 2. Clause 78C and cl 78D of Sch 2 are deemed to be included in LPS 21. Clause 78C and cl 78D provide for the subject site to be declared bushfire prone and require development approval for any dwellings due to the extreme bushfire hazard present at the subject site. Clause 78D incorporates requirements for a Bushfire Attack Level (BAL) assessment and a BAL contour map.
Clause 5.30.2 of LPS 21 provides that trees and vegetation in the Conservation zone may only be cleared with planning approval where the clearing is essential for achieving adequate fire protection, for vehicle access to buildings and for the construction of a dwelling.
Clause 5.32.4 of LPS 21 provides in relation to building envelopes in the Conservation zone that all development must be located within an approved building envelope or in such other manner that may be identified on a development guide plan in order to ensure (relevant to these proceedings) the preservation of remnant vegetation is maximised as well as the maintenance of landscape values of the site in the general area.
Clause 5.36 of LPS 21 provides that vegetation surveys shall be undertaken prior to subdivision in the Conservation and Bushland Protection zones in order to identify rare, endangered or otherwise significant vegetation within the proposed building envelope and vehicle access areas, in addition to any other area of the lots as deemed appropriate by the City, and provide for its appropriate conservation to the satisfaction of the Department of Parks and Wildlife and the City.

SPP 6.1

The subject site falls within the LeeuwinNaturaliste Ridge Policy area as defined in Figure 1 of SPP 6.1.
The policy objectives of SPP 6.1 (not ranked in any particular order) are to:
•conserve and enhance the special benefits arising from landscape elements that form the fabric of the region;
•respect and conserve its outstanding natural and cultural heritage and environmental values;
•cater for population growth consistent with the objectives of the LNRSPP and provide a range of settlement options located to enhance the economic, social and environmental functions, while promoting quality and innovation in urban design and built form;
•protect agricultural land for its economic, landscape, tourism and social values;
•encourage a mix of compatible land uses while separating conflicting land uses;
•facilitate a robust, diverse and sustainable economy; and
•foster a sense of community and creativity;
for the benefit of all residents and visitors and for future generations.
The policy objectives of SPP 6.1 are supported by relevant policy statements including clause 4.2 Nature Conservation which includes that nature conservation values will be conserved through protecting and maintaining remnant vegetation and establishing land use controls to conserve land. There are various policy statements which support the statement of intent for nature conservation. These policy statements include:
a)PS 2.2 which creates a general presumption against clearing of remnant vegetation;
b)PS 2.3 which provides that clearing of remnant vegetation requires planning approval and may be supported in certain circumstances, one of them being where removal does not threaten the presence of rare and threatened flora, fauna and ecological communities;
c)PS 2.6 which provides that proposals for development adjacent to natural bushland areas will be required to include an effective bushfire protection plan that is consistent with conservation values; and
d)PS 2.7 which provides that proponents of development must ensure that it does not significantly increase the threat of bushfires nor is to be located in an area of high bushfire hazard.
The subject site is further categorised in relation to strategic land use in Figure 5 of SPP 6.1 as being within the 'Ridge Landscape Amenity Area' which are also supported by specific policies with those being relevant to the proposed subdivision as follows:
LUS 3.6 Maintaining or enhancing the conservation and landscape values of the Ridge Landscape Amenity Area will be the primary criteria against which proposals for land use, subdivision or development within these areas will be assessed.
LUS 3.7 In the Ridge Landscape Amenity Areas, there is a general presumption against further subdivision. Development will normally be restricted to one dwelling per lot and lowimpact recreation facilities in limited locations, if considered compatible with conserving the ecological and landscape values of the Ridge, National Park and Principal Ridge Protection Areas.
LUS 3.8 As an incentive for landowners to maintain the conservation and landscape values of the land in perpetuity, the following will be considered
•for lots 40 ha and above, subdivision based on a ratio of one lot per 20 ha. Subdivision should be in clustered form unless based on existing dwellings; or
•for lots below 40 ha at the date of Gazettal of this LNRSPP, subdivision of one additional lot[.]
LUS 3.9 Proposals for development adjoining the National Park or Principal Ridge Protection Area must demonstrate that the development meets fire hazard and risk standards associated with this category and that it does not adversely affect the fire management regimes of adjacent landowners.
LUS 3.10 There is a general presumption against the clearing of remnant vegetation in the Ridge Landscape Amenity Area other than for approved building envelopes, access and services.
…
LUS 3.12 Development will comply with the protection and enhancement of the environmental integrity of ecological linkages and their landscape qualities.
…

SPP 3.7

Consideration of SPP 3.7 is to be done in conjunction with the respondent's Guidelines for Planning in Bushfire Prone Areas published in December 2015 (Bushfire Guidelines) and the Deemed Provisions.
The policy intent of SPP 3.7 is to implement effective, riskbased land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure.
The policy objectives of SPP 3.7 are listed in clause 5 as to:
5.1Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
5.2Reduce vulnerability to bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process.
5.3Ensure that higher order strategic planning documents, strategic planning proposals, subdivision and development applications take into account bushfire protection requirements and include specified bushfire protection measures.
5.4Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change.
Clause 6.2 provides that any subdivision proposal within designated bushfire prone areas relating to land that has or will have a Bushfire Hazard Level (BHL) above 'low' and/or where a BAL rating above 'BALLOW' apply, are to comply with these policy measures. Clause 6.2 further provides that a subdivision proposal that has, or will on completion have, a 'moderate BHL' and/or where BAL12.5 to BAL29 applies, may be considered for approval where it can be undertaken in accordance with clause 6.4.
Clause 6.4 requires any subdivision application to be accompanied by the following information in accordance with the Bushfire Guidelines which requires a BAL contour map to determine the indicative acceptable BAL ratings across the subject site, the identification of any bushfire hazard issues arising and an assessment against bushfire protection criteria demonstrating compliance within the boundary of the proposed subdivision. This information can be provided in the form of a bushfire management plan.
Clause 6.7 requires any subdivision proposal which will result in the introduction or intensification of development or land use that has, or will on completion have, an extreme BHL and/or BAL40 or BALFZ will not be supported unless the proposal is considered to be minor development or the proposal is considered to be unavoidable development. The definition of 'minor development' in SPP 3.7 is not applicable to the subject site in the present proceedings.
Clause 6.11 provides that where an applicant has not satisfactorily demonstrated that the relevant policy measures have been addressed, the decisionmaker should apply the precautionary principle to a subdivision proposal.

Other relevant policies and instruments

The Tribunal notes the following planning instruments that are also relevant when considering the subdivision proposal:
a)State Planning Policy 1 - State Planning Framework Policy (Variation No 2);
b)State Planning Policy 2.5 - Land Use Planning in Rural Areas;
c)the respondent's Development Control Policy 1.1 - Subdivision of Land General Principles;
d)the respondent's Development Control Policy 1.3 - Strata Titles (DCP 1.3);
e)the respondent's Development Control Policy 3.4 - Subdivision of rural land;
f)the City's Local Rural Planning Strategy published in 2006; and
g)the City's draft Local Planning Strategy dated March 2016.

Issues for determination

The ultimate issue for the Tribunal to determine in this matter is whether the proposed subdivision is the correct and preferable decision having regard to the following interwoven subissues as follows:
Issue 1:Whether the proposed subdivision complies with the planning framework, relevant planning considerations and orderly and proper planning (Planning Framework Issues).
Issue 2:Whether the proposed subdivision will give rise to land use conflicts between the need to address the bushfire hazard and the environmental constraints on the subject site (Bushfire Hazard).
Issue 3:Whether the proposed subdivision will produce an unacceptable impact on the environmental, conservation and landscape values on the subject land (Environmental, Conservation and Landscape Values).
Issue 4:Whether the claim of hardship raised by the applicants is accepted and whether having regard to that claim will affect the application of sound planning principles (Hardship).
A number of other issues arose between the parties, for instance concerning whether lots below 20 hectares can, or should, be permitted and whether the Tribunal can, or should, exercise its discretion under s 138(3)(c) of the PD Act. The Tribunal is of the view that those further issues either fall within those broader issues identified above and, for the reasons which follow, findings in relation to those issues are considered unnecessary.

The evidence

The applicants provided expert evidence from a town planner, Mr Matthew Young and Mr Roger Banks who is an environmental consultant who gave expert evidence in the areas of conservation, vegetation and bushfire management.
Mr and Mrs Forma and Mr Pavy each provided witness statements concerning the details and history of their purple title arrangement.
The respondent provided expert evidence from town planners, Mr Peter Wright employed by the Department of Planning and Ms Joanna Wilson employed by the City of Busselton. The respondent provided expert evidence from Mr Peter Hanly who has expertise in environmental, conservation, vegetation and planning matters and is employed by the Department of Parks and Wildlife. The respondent also provided expert evidence from Mr Jackson Parker in bushfire risk and management who is employed by the Department of Fire and Emergency Services.
The Tribunal has had the benefit of three joint statements prepared by the experts in town planning, vegetation and bushfire management.

Issue 1: Planning Framework Issues

Having considered all of the evidence in this matter and for the reasons which follow, the Tribunal is of the view that it is unnecessary to make findings in relation to the specific planning framework issues identified by the parties in order to determine whether the proposed subdivision should be approved.
However, for the sake of completeness as to the issues below which the Tribunal will make findings and determine, the Tribunal will make findings as to which expert planning evidence the Tribunal preferred.
The Tribunal finds that the expert planning evidence of both Mr Wright and Ms Young were reliable and credible. Both of their opinions were supported by evidence and, in particular in relation to Mr Wright, easily understood reasoning.
In contrast, the Tribunal finds that the expert planning evidence of Mr Young cannot be accepted by the Tribunal because the Tribunal finds his opinion is unsupported by detailed reasoning and lacks credibility as expert planning evidence. For instance, throughout Mr Young's evidence he continually understates the process to be applied to the proposed subdivision stating often it is 'simply a matter of converting one form of title to another'. Pursuant to cl 3.2.4 of the respondent's DCP 1.3 an application for subdivision into surveystrata lots is assessed to the same extent as conventional lot subdivision. This was accepted by Mr Young in his oral evidence, however he continued to advance an incorrect view that the subdivision proposal should be treated differently from other applications because of the history of the subject site and the purple title arrangements in place.
Mr Young's approach is different from the established position that a decisionmaker should not apply policy inflexibly. Mr Young seeks for the Tribunal to fail to have due regard to the planning framework. This incorrect approach by Mr Young undermines his credibility as an expert and leads to the failure in his evidence to properly address the planning matters that need to be considered in assessing the subdivision proposal.
Therefore, to the extent that Mr Young's evidence differs from that of Mr Wright or Ms Wilson, the Tribunal does not accept the evidence of Mr Young and prefers the evidence of Mr Wright and Ms Wilson.

Issue 2: Bushfire Hazard

The parties identified this issue as stated above to be whether the proposed subdivision will give rise to land use conflicts between the need to address the bushfire hazard and the environmental constraints on the subject site. Whilst this issue does arise, this is not the core of this issue as revealed by the evidence. The Tribunal is of the view that the bushfire hazard issue is whether the bushfire hazard can be appropriately mitigated or managed so that the Tribunal can be satisfied to conclude that the correct and preferable decision is to approve the subdivision proposal.
Determination of this issue and others must be done in accordance with the planning framework mindful that policy within that framework provides guidance to the exercise of the Tribunal's discretion and the Tribunal is not to apply policy inflexibly: see Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24]; Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 529 530 and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [51] [53].
Mr Parker's evidence was that the subdivision proposal has an extreme bushfire hazard level and poses an unacceptable risk to people and property that cannot be satisfactorily managed not only through the proposed measures in the applicants' suggested bushfire management plan (BMP), but any bushfire plan. The principal reasons for this were detailed as follows:
a)the subdivision proposal results in an intensification of land use in that three permissible dwellings would be allowed resulting in more people being present at the subject site;
b)the subject site is located in an area that is not managed in a minimum fuel condition;
c)the dominant vegetation consists of a multitiered forest; and
d)bushfires can approach from more than one direction and there is only one adequate publicly available evacuation route away from the subject site.
Mr Banks in his evidence acknowledged that some of the surrounding area is an extreme bushfire risk. However, the view of Mr Banks was that the BMP proposed by the applicants will reduce the immediate risk to the subject site to 'moderate' which is an acceptable outcome under SPP 3.7.
Mr Parker disagreed that the risk at the subject site was reduced to 'moderate' by the BMP explaining that there appeared to be some confusion about the application of terminology. Mr Parker further explained that by reducing the risk around assets at the subject site, for instance by introducing an asset protection zone (APZ), did not reduce the risk across the whole of the subject site which remained at an extreme bushfire hazard level.
Mr Parker was particularly concerned that there is only one publicly available evacuation route available in the event of an emergency. Mr Parker explained that people's behaviour in an emergency is difficult to control and that two publicly available evacuation routes are required not just for residents but also for emergency personnel and other visitors to the area who may not be as familiar with the road layout. Mr Parker also pointed out at the site view the two 'dead end' roads of Tilly Road and Quinninup Road which were much longer than the recommended 200 metres in length. Mr Parker explained that long 'dead end' roads can entrap people in a bushfire and these two 'dead end' roads were particularly hazardous as they were surrounded by bushfire prone vegetation.
Mr Parker explained his view that the only publicly available exit along Quinninup Road and Caves Road was insufficient because a bushfire could approach from that direction or something unexpected could happen in the progression of a bushfire, such as a change in weather or wind direction. Mr Parker also acknowledged the very real risk in the locality that bushfires could approach the subject site from multiple directions, however having two publicly available evacuation routes was considered appropriate to manage the risk.
Mr Banks proposed a second evacuation route onto private land, being a vineyard. Mr Parker was of the view that a private route onto private land was not satisfactory. Mr Parker explained the pitfalls of such a route being it may only be known to the residents of the subject site and it is itself a 'dead end' as it is not a destination such as a town which opens up other evacuation route options. Mr Parker further explained that members of the public may be in a state of panic and they need two publicly available evacuation routes that are built to a public standard, not a private track known to only a few. Mr Parker also noted that a private route was not satisfactory for the needs of emergency personnel.
Mr Parker and Mr Banks clarified at the hearing that their witness statements and expert conferral proceeded on the basis that both of the 'sheds' on the proposed Lot 3 would, and should, be removed if subdivision was approved. Mr Parker was of the view that a subdivision proposal that included removal of the 'sheds' and three permissible dwellings that could be permanently occupied, in contrast to the present situation, resulted in an intensification of land use at the subject site that increased the risk to dwellings and people in the event of a bushfire. The Tribunal agrees with Mr Parker. The Tribunal is of the view that the subdivision proposed is not a simple conversion of a purple title, or what is on the ground, to a three lot subdivision. The Tribunal finds that the subdivision proposal is an intensification of land use at the subject site that must be considered in light of the extreme bushfire hazard at the subject site. To quote the language of Mr Parker, the Tribunal is persuaded that approval of the subdivision proposal would 'make a bad situation worse'.
The Tribunal found Mr Parker to be an impressive and persuasive expert witness. Mr Parker's opinion evidence was reasoned and easily understood. Mr Banks made a number of concessions in the joint statement and his oral evidence that agreed with Mr Parker. However, where the two differ was the extent that the BMP could satisfactorily manage the bushfire risk. The Tribunal accepts the criticism by Mr Parker of the proposed BMP prepared under the supervision of Mr Banks, in that it focusses on asset protection and incorrectly equates that protection with a lower risk to people and the subject site.
The applicant makes a somewhat persuasive submission that subdivision approval in relation to the subject site, in particular with a condition requiring a BMP will produce a better outcome than the present arrangement by reducing risks from a bushfire through the strategies in the BMP. The Tribunal cannot accept this submission because of the Tribunal's finding that the subdivision proposal amounts to an intensification of land use.
The Tribunal accepts the view of Mr Parker that no BMP could acceptably manage the bushfire risk at the subject site because of the inherent risks associated with the subject site that cannot be changed or managed by a BMP, in particular the extent of dense vegetation at the subject site and the LeeuwinNaturaliste National Park bordering the subject site as well as the lack of two publicly available evacuation routes.
To the extent that it is necessary as to where their opinions differ, the Tribunal prefers the opinion of Mr Parker over that of Mr Banks.

Issue 3: Environmental, conservation and landscape values

The applicant makes a somewhat persuasive submission that subdivision approval in relation to the subject site, in particular in the applicant's entering into a conservation covenant that this will produce a better outcome in relation to protection in perpetuity of the Wilbarup vegetation complex.
The respondent's position (supported the evidence given by Mr Wright and Mr Hanly) was that those potential benefits did not outweigh what the respondent submitted were negatives in granting subdivision approval for the subject site. Those negatives being, intensification of landuse increasing the risk to life and property from bushfires and the necessary clearing of native vegetation required for the building envelope proposed on Lot 3.
The Tribunal considers it unnecessary in order to determine these proceedings to make findings in regards to the conservation issues that arise from the application of LPS 21 and SPP 6.1 in relation to the subject site and whether a conservation covenant is appropriate. This is because the Tribunal is of the view that the issue in relation to the suggested building footprint and building envelope go to the ultimate, or heart of the issue, as to whether the proposed subdivision should be approved and take precedence over any consideration of conditions that may be imposed no matter that such a condition for a conservation covenant may have intrinsic conservation benefit in perpetuity of the Wilbarup vegetation complex: see Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [42] [44].
The Tribunal notes the view of Ms Wilson that the City is unable to enforce a building footprint into the future and that the usual approach is to approve a building envelope not a building footprint within a building envelope.
There are a number of issues arising from the flora and fauna survey completed in September 2016. The main criticism levelled at the survey is that it was done at the wrong time of year, in particular not during the expected flowering time for the rare caladenia excelsior. The survey is also criticised for being insufficient or inconclusive. One of the reasons the survey is potentially inconclusive is the proposed building envelope for proposed Lot 3 experienced a bush fire in autumn 2016 and has not recovered sufficiently to be properly surveyed.
It is difficult for the Tribunal to properly assess conservation issues in relation to the subject site when the flora and fauna survey is insufficient or inconclusive.
By effectively accepting the deficiencies in the vegetation survey identified by Mr Hanly's evidence, the applicants submitted that a condition be imposed that they do a further survey at the appropriate time which could then confirm the location of the building footprint in the building envelope on proposed Lot 3. Based on the applicants' submission, dependent upon the findings of the further survey, this could mean that the building footprint could move within the building envelope. The applicants submitted that this would then occur 'prior to subdivision', that is, prior to the deposited plan being approved for titles to be created) and therefore be in compliance with cl 5.36 of LPS 21. However, the Tribunal considers that this issue is not resolved as simply as suggested by the applicants. The Tribunal found in Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 at [85] that:
Where first used, the word 'satisfaction' is intended to refer to 'approval' of the Shire. The Tribunal accepts that incidental aspects of a development may properly be the subject of a condition which requires the preparation of a plan, detail or specification for approval by the original decisionmaker and implementation of the approved plan, detail or specification. A condition cannot lawfully defer, for later consideration, a non-incidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made' (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case. For example, in this case, dust mitigation and landscaping are incidental aspects of the proposed development. However, in the case of a concrete batching plant, dust is likely to be a central aspect, and in certain cases, landscaping might well be a central aspect of the development in relation to which the consent authority needs to be satisfied at the time it grants development approval.

The Tribunal finds that the results of a further vegetation survey may not only have the consequence that the building footprint moves within the proposed building envelope, but the actual building envelope itself may need to move. This would mean that the Tribunal would be giving approval to a plan of subdivision that is likely to change. The Tribunal finds that providing an approval in these circumstances is not appropriate as the conservation of vegetation, in particular the Wilbarup vegetation complex and the rare caladenia excelsior, is a central aspect of these proceedings. The Tribunal is of the view that there is a level of uncertainty and a lack of finality with the approach suggested by the applicants that is not satisfactory.

Issue 4: Hardship

Pursuant to s 241(3) of the PD Act, the Tribunal in determining this matter may have regard to claims of hardship raised by the applicants and proved to the satisfaction of the Tribunal, if the Tribunal is of the opinion that such regard will not affect the application of sound planning principles.
Whilst the Tribunal has some sympathy for the situation within which the applicants find themselves, in particular Mr Pavy, the Tribunal is not satisfied that this amounts to hardship under s 241(3) of the PD Act. The Tribunal is not satisfied that the situation that Mr Pavy finds himself in relation to nonconforming use rights amounts to hardship. Whilst Mr Pavy has no immediate right to extend or rebuild, he can apply to the City for permission to alter, extend or erect as well as repair or rebuild his cabin if it is destroyed to more than 75% of its value.
Further, even if the Tribunal could be satisfied these circumstances constituted a hardship on Mr Pavy, the Tribunal is of the view that the hardship detailed is not of itself to be afforded sufficient weight as to be determinative of this matter: see Bingwa and Western Australian Planning Commission [2007] WASAT 204 at [59]. The Tribunal finds that regard to that hardship would affect the application of sound planning principles as detailed in issues 2 and 3 above.

Conclusion

Having regard to the planning framework, the evidence, the substantial merits of the proposed subdivision and the discretion that the Tribunal may exercise, the Tribunal concludes that the correct and preferable decision is to refuse the subdivision proposal. In particular, the Tribunal concludes that the subdivision proposal should be refused based on the following:
a)the Tribunal is unable to make appropriate findings in relation to conservation issues which arise from the subdivision proposal on the information presently available in the flora and fauna survey, in particular in relation to the lack of certainty and finality as to the proposed building footprint and building envelope for the proposed Lot 3; and
b)the approval would result in an intensification of land use, effectively meaning that more people could be occupying the subject site at any given time, which is unacceptable given the extreme bushfire risk at the subject site which cannot be appropriately managed in particular as to the single evacuation route from the subject site in the event of a bushfire emergency.
There were a number of other issues that the parties raised as issues in dispute which the Tribunal considers do not need to be determined. These issues were not necessary to be determined because the Tribunal is of the view that the two issues identified above are, combined, so significant as to warrant refusal of the subdivision proposal without need for consideration of the further issues raised in dispute between the parties.
Accordingly, the Tribunal concludes it is consistent with orderly and proper planning that the correct and preferable decision on review is to refuse the application for subdivision approval.

Orders

Accordingly the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent on 8 March 2016 refusing the proposed subdivision is affirmed.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D QUINLAN, MEMBER