SARABAND INVESTMENTS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE
[2021] WASAT 53
•29 APRIL 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SARABAND INVESTMENTS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2021] WASAT 53
MEMBER: MS C BARTON, MEMBER
MS R LAVERY, MEMBER
HEARD: 9, 10 AND 11 FEBRUARY 2021
DELIVERED : 29 APRIL 2021
FILE NO/S: DR 131 of 2018
BETWEEN: SARABAND INVESTMENTS PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Development application - Exercise of planning discretion - Orderly and proper planning - Rural use - Orchard - Dam - Sustainable allocation of surface water - Water resources - Watercourse - Mean annual flow - Mean winterflow - Riparian rights - Sustainable diversion limit - Sustainable yield - Downstream users - Downstream environment - Sensibly diminished - Reliability of supply - Sustainable development - Clearing of native vegetation - Riparian vegetation - Bushland retention policy - Local natural area - Low flow bypass - Licence to take water - Bed and banks permit
Legislation:
Environmental Protection Act 1986 (WA), Pt V, Div 2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, cl 67, cl 67(b)
Planning and Development Act 2005 (WA), s 3(1)(c), s 164(1), s 252(1)
Rights in Water and Irrigation Act 1914 (WA), s 5(1)(a), s 5C, s 17, s 20(1)(c)
Shire of Serpentine-Jarrahdale Draft Local Planning Scheme No 3
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.2, cl 5.10.1, cl 6.1.1
State Administrative Tribunal 2004 (WA), s 17, s 24, s 29(3), s 31
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| Applicant | : | Mr H Jackson SC |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Glen Mcleod Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111
Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59
Price & Anor and Shire of Gingin [2008] WASAT 210
Robertson and City of Albany [2019] WASAT 3
SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22
SITA Australia Pty Ltd v Greater Dandenong City Council [2007] VCAT 156; (2007) 150 LGERA 26
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 19 October 2017, Coterra Environment on behalf of Saraband Investments Pty Ltd (applicant) applied to the Shire of SerpentineJarrahdale (Shire) for development approval to construct three irrigation dams at Lot 2 (206) Firns Road, Serpentine (subject land). The Shire refused the application on 2 May 2018, for a number of reasons, including that the proposal is inconsistent with the objectives of the 'Rural' zone of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2) because, at that time, it did not demonstrate a ruralpursuit.
On 30 May 2018, the applicant sought review of the Shire's decision by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). During the course of the proceeding, theapplicant filed amended plans and supporting documentation in accordance with orders made by the Tribunal on 12 June 2020 (amendedapplication).[1]
[1] Letter from Planning Solutions to the Shire dated 1 July 2020; Exhibit 3, pages 1-39.
On 21 September 2020, the Council of the Shire (Council) considered the amended application pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). A condition imposed by the Council on the approval granted following reconsideration had the effect of refusing the amended application for the proposed dams (Council approval).[2] The Council approval also retrospectively approved six existing dams on the subject land (withoutthe applicant's request). The applicant seeks review by the Tribunal of the Council approval.
[2] See Annexure A – Council approval of 21 September 2020.
By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. The Tribunal is to review the decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence beforeit.[3] The Tribunal is not limited to the material before the Shire as the original decision-maker, but may consider new material.[4] TheTribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[5] Section29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.
[3] Section 27(1) and s 27(2), SAT Act.
[4] Section 27(1), SAT Act.
[5] Section 32(2)(b), SAT Act.
The applicant is seeking orders from the Tribunal setting aside the Shire's decision made on 21 September 2020 and granting approval for the proposed dams. For the reasons set out in this decision, the Tribunal concludes that the amended application, the subject of review, should be allowed in part. The Tribunal will set aside the Shire's decision and substitute a new decision.
The amended application
The amended application seeks approval for three 'on-line' dams in the northern watercourse of the subject land for the purpose of irrigating a proposed trufflery orchard. There is no dispute that the proposed dams are 'works' requiring development approval under cl 60 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions).[6]
[6] The term ‘works’ is defined in cl 1 of the Deemed Provision to include, in relation to land, any demolition, erection, construction, alteration of or addition to any building or structure on the land and the carrying out of any excavation or other works on land.
The three proposed dams are described on the amended plans as Dams 2A, 2B and 2C and will have a total capacity of approximately 29,126 kilolitres. The applicant describes the proposal as a single dam to be constructed in three sections (2A, 2B and 2C) (Dam 2).
The amended application also seeks approval for the removal of existing Dams 3B and 3C which are located in the northern watercourse and have a current total capacity of approximately 2,250 kilolitres. Dams 3B and 3C are two of nine existing dams on the subject land, which together have a total combined storage capacity of approximately 50,156.6 kilolitres. The nine existing dams include a dam which was approved by the Shire on 29 January 2013 for a foreshadowed orchard use (Dam 1). Dam 1 has a storage capacity of approximately 45,560kL.
The additional storage capacity of Dam 2 and the reduction in capacity from the removal of Dams 3B and 3C results in an overall storage capacity of dams on the subject land of approximately 77,032.8 kilolitres.
An inlet structure and low flow bypass is proposed upstream of Dam 2, with the open channel or pipe of the bypass to be located on the northern side of the dam. The bypass will be designed to capture no more than 11% of the winterflow from 15 June to 15 October, with the remaining 89% to be discharged via the bypass channel or pipe to the lot boundary to the west of Dam 2.
Dam 2 will be constructed using a compacted earthfill (clay core) embankment. The clay core will be constructed using low permeability materials while the embankment shell that surrounds the clay core will be constructed using surficial non-cohesive materials and clayey materials.
The amended application also identifies 16.9 hectares of cleared land within the subject land for the establishment of a trufflery orchard by the planting of oak and hazelnut trees.
Construction of Dam 2 will require the clearing of 1.14 hectares of predominantly riparian vegetation, consisting of open marriwandoo woodland over both native and exotic understorey (riparian vegetation).
The Council approval
Pursuant to s 31 of the SAT Act, the Council considered the amended application at an ordinary meeting on 21 September 2020.
The Council granted approval to the establishment of an orchard for the purpose of producing truffles within existing (already cleared) areas of the subject land under TPS 2 and the Metropolitan Region Scheme (MRS). The Council also approved the removal of two existing dams (3B and 3C) and granted retrospective approval for six dams on the subject land.
The Council imposed a number of conditions on the Council approval, including condition b. There is no dispute, and the Tribunal finds, that condition b had the effect of refusing the amended application for Dam 2.
Condition b of the Council Approval provides as follows:
b.Proposed Dams 2A, 2B and 2C and the proposed 1.14 hectares of vegetation clearing being deleted from the plans and documentation, and such plans and documentation to be updated to the satisfaction of the Shire of Serpentine Jarrahdale based upon the revised water storage resulting from the removal of Dams 2A, 2B and 2C from this approval.
The Tribunal observes that a condition of approval, such as condition b, that has the effect of refusing a proposed development fails to provide applicants with the clarity and certainty required by decisionmaking authorities in the planning assessment and approval process.
The issues for determination
The Shire has identified the following issues for determination by the Tribunal:
1)Does the development of Dam 2 represent an appropriate and sustainable allocation of surface water?; and
2)Is the removal of the native vegetation required to construct Dam 2 acceptable?
The applicant agrees that these two issues are relevant to the primary issue for determination, that is, whether the correct and preferable decision is for the Tribunal to allow the amended application.
The applicant has raised, as a subsidiary issue, whether the Shire had the authority to grant retrospective approval for the six existing dams (and impose conditions on the Council approval in respect of them) when the six dams did not form part of the amended application.
Subject land and the locality
The subject land is zoned 'Rural' under TPS 2 and is formally described as Lot 2 on Diagram 36434, being the whole of land in the Certificate of Title Volume 242, Folio 92A. The subject land is approximately 75.3 hectares in area and is located at the intersection of Scrivener Road and Firns Road, approximately 4 kilometres south-east of the Serpentine townsite. Immediately to the south of Scrivener Road and to the west of Firns Road is the locality of Serpentine.
The subject land is partially cleared and currently contains a dwelling, incidental buildings and nine existing dams. The headwaters of two ephemeral watercourses, known as the 'northerngully' and the 'southern gully,' are located within the subjectland. The northern gully traverses westwards across the site via two existing dams (Dams 3B and 3C) and discharges at the western boundary of the subject land. The headwaters of the southern gully are located below Dam 1 and also discharge at the western boundary of the subject land.
The subject land is located immediately upstream from Lot 564 Scrivener Road (Lot 564) to the west which is zoned 'Conservation' under TPS 2. Land to the north, east and south of the subject land are reserved for 'Parks and Recreation' under the MRS. There are additional areas of Rural zoned land to the immediate east and west of the subject land.
Third party consultation
The Shire advertised the amended application for comment to adjoining landowners who made submissions in relation to, but not limited to, the following:
•the environmental impacts to flora and fauna;
•impacts to water resources with respect to water quality;
•safety of neighbouring properties in the event of a dam collapse;
•effects on riparian rights; and
•the potential for impact on downstream users arising from the orcharding operations and possible nutrient discharge.
In a letter to the Shire dated 4 August 2020, the Department of Water and Environmental Regulation (DWER) advised that, inprinciple, it did not object to the amended application subject to the following conditions:
•89% of flow within the northern gully to be bypassed around Dam 2;
•a low flow bypass to be installed with a minimum threshold capacity of 0.13ML/day; and
•harvest of water by Dam 2 only to occur during winterflows from 15 June to 15 October each year.
DWER also recommended that the Shire consider requiring the installation of flow gauging equipment to assist with compliance reporting should the Shire approve the amended application.
The conduct of the hearing and expert evidence
Each party filed and gave to the other party a statement of issues, facts and contentions. The Shire filed an amended statement of issues, facts and contentions on 30 October 2020,[7] and the applicant substituted its statement of issues, facts and contentions on 20 November 2020.[8]
[7] Exhibit 1.
[8] Exhibit 2.
The Shire filed a bundle of documents under s 24 of the SAT Act on 29 November 2019,[9] and the applicant filed its bundle of documents on 13 December 2019.[10] The Shire filed a supplementary bundle of documents on 3 November 2020[11] and a second supplementary bundle of documents on 21 December 2020.[12]
[9] Exhibit 2.
[10] Exhibit 13.
[11] Exhibit 3.
[12] Exhibit 4.
Ms Rebecca Epworth, a qualified engineer and Director of Coterra Environment, prepared a witness statement dated 18 December 2020.[13] Ms Epworth was retained by the applicant to conduct a hydrological assessment of the proposal that is the subject of the review. The Shire relied on the expert hydrology evidence of Mr Alexander Martens who prepared a witness statement dated 21 December 2020.[14] Mr Martens is the Managing Director and principal engineering hydrologist at Hyd2o. Ms Epworth and Mr Martens also prepared a joint witness statement dated 29 January 2021.[15] When cross-examined, Ms Epworth on many occasions resisted answering the questions posed of her in an independent and objective manner. For this reason, to the extent that there are differences in opinion between Ms Epworth and Mr Martens, the Tribunal prefers the evidence of Mr Martens notwithstanding the applicant's criticism of Mr Martens for not acknowledging, in his preliminary assessment, two of the three calculation methods used by DWER.
[13] Exhibit 19.
[14] Exhibit 11.
[15] Exhibit 21.
The applicant also relied on the expert evidence of Mr Jason Hick, who is a Director and practising environmental scientist with Emerge Associates. Mr Hick prepared a witness statement dated 17 December 2020 to address the proposed vegetation clearing of the subject land.[16] The Shire relied on the expert evidence of Dr Penny Hollick, who is an environmental and biodiversity officer at the Shire. Dr Hollick prepared a witness statement dated 9 December 2020.[17] Mr Hick and Dr Hollick also prepared a joint witness statement dated 22 January 2021.[18] The Tribunal found Mr Hick and Dr Hollick to be reliable witnesses who were of assistance to the Tribunal in its determination.
[16] Exhibit 18.
[17] Exhibit 10.
[18] Exhibit 20.
The proceeding was heard on 9, 10 and 11 February 2020 with the parties' legal representatives and all expert witnesses attending the Tribunal in person. The Tribunal did not attend a site view.
Tribunal's consideration
The retrospective approval
The Council approval retrospectively approved six existing dams on the subject land. The applicant contends that the amended application does not include any reference to the six dams and, therefore, the Shire had no authority to make them the subject of the Council approval. The Shire contends that the conditions of the Council approval relating to the retrospective approval of the six dams were imposed for a proper planning purpose because the existing dams would be used to irrigate the proposed orchard.
A planning approval cannot ordinarily go beyond the matters that are the subject of a development application for which approval is sought. However, the Shire (and the Tribunal standing in its shoes) has power under s 164(1) of the PD Act and cl 6.1.1 of TPS 2 to approve a development application characterised as one seeking retrospective approval: see Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 at [21]. The characterisation of a development application may be determined by the objective matrix of facts and circumstances that supply the context to the application: Price & Anor and Shire of Gingin [2008] WASAT 210 at [52].
The amended application refers to the approval of Dam 1 on 29 January 2013 to secure a reliable water source with the intent of establishing an orchard on the subject land but does not contain any reference to reliance on the six (unapproved) dams for irrigation of the proposed trufflery orchard. The amended application expressly provides that, 'the existing dams (other than the removal of Dams 3B and 3C) do not form part of this proposal'.[19]
[19] Exhibit 3, page 6.
Having regard to the scope and factual context of the amended application, the Tribunal finds that it does not seek retrospective approval for the six existing dams. Accordingly, the Tribunal will set aside that part of the Council approval that relates to the retrospective approval of the six dams, including conditions c, d, and e.
Surface water allocation
The Tribunal will next consider whether the construction of Dam 2 represents an appropriate and sustainable allocation of surface water (issue 1).
As the regulator of water resources within the State, DWER advised the applicant by letter dated 7 February 2017 that the proposal (as at that date) did not require a licence to take surface water under s 5C of the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act). The decision was made by DWER on the basis that the northern watercourse originates within the boundary of the subject land for the purposes of s 5(1)(a) of the RIWI Act.[20] The proposal will, however, require a permit under s 17 of the RIWI Act to carry out works that will obstruct or interfere with the bed and banks of the northern watercourse (bed and banks permit).[21]
[20] Exhibit 3, page 31. See also letter from DWER to the Shire dated 19 October 2018, (Exhibit 2, Tab 5, Appendix 4 to revised application dated 25 March 2019).
[21] Exhibit 3, page 44. A bed and banks permit was issued by DWER from 28 March 2017 to 27 March 2019 in respect of the construction of three dams on the subject land: Exhibit 3, page 36.
The RIWI Act provides, subject to certain limitations, that an owner of land is entitled to take water free of charge from a watercourse that runs through or is contiguous to that land to the extent that the flow of water is not sensibly diminished.[22] The term 'sensibly diminished' encapsulates a form of degradation to a water resource, in respect of downstream users or the environment, where the sustainable limit of take is exceeded.[23] The applicant contends that the proposal, if appropriately conditioned, will not detrimentally impact downstream users or the environment and, therefore, is consistent with the sustainable allocation of surface water and local and State policy on water quality protection as articulated in Shire of SerpentineJarrahdale Rural Strategy 2013 Review and Water Quality Protection Note No. 53 - Dam construction and operation in rural areas (DWER, 2019).
[22] Section 20(1)(c) of the RIWI Act.
[23] Letter from DWER to the Shire dated 19 October 2018 (Exhibit 2, Tab 5, Appendix 4 to revised application dated 25 March 2019).
In its letter to the Shire of 4 August 2020, DWER recommended a sustainable diversion limit (SDL)[24] to maintain 89% of the predevelopment flow downstream of Dam 2 to be achieved by the installation of a low flow bypass with a minimum flow threshold (MFT) of 0.13ML/day and the taking of water between 15 June to 15 October each year (winterflow). DWER's letter of 4 August 2020 provides (DWER recommendation):[25]
A hydrological report on behalf of the proponent (Coterra, 2017), estimated flows from the catchment of the northern gully to be 68 megalitres (ML) a year. This information was assessed by the Department, and a sustainable diversion limit was recommended to maintain 89% of the predevelopment flow within the gully downstream, allowing the capture of 11% of flow within the proposed dams, which is approximately 7.48ML per year.
[24] The SDL represents an upper limit beyond which there is unacceptable risk that additional extractions may degrade the riverine environment.
[25] Exhibit 3, page 43.
The applicant accepts the application of SDL methodology[26] but contends that the DWER recommendation permits the taking of 11% of the mean annual flow rather than 11% of the mean winterflow. The amended application is expressed in terms that propose the taking of 11% of the winterflow as follows:[27]
The inlet structure will be designed to capture no more than 11% of the winterflow (15 June to 15 October) from the gully, with the balance of water in the gully being discharged via the bypass channel/pipe to the lot boundary to the west of Dam 2.
[26] Applicant's SIFC, para 32(c). The hydrology experts agreed that the SDL methodology concept is the correct mechanism to determine sustainable yield: Joint witness statement of Mr Sasha Martens and Ms Rebecca Epworth, 25 June 2021, para 3.
[27] Exhibit 3, page 6.
In Mr Martens' opinion, the DWER recommendation adopts 11% of the mean annual flow in calculating the SDL Maximum Annual Take for the northern gully.[28] Mr Martens considers that DWER should have relied on the 11% average referred to in the SKM (2008) report[29] which he says correctly applies the 'mean winterfill period flow' and not the 'mean annual flow', which is a larger amount.[30] The applicant took the Tribunal to an internal DWER memorandum dated 7 October 2020 (DWER memo) which refers to the SDL volume calculations for the subject land and arrived at the MFT figure of 0.13ML/day.[31] The DWER memo refers to the SDL volume calculated on the basis of 'ML/year taken in winter' which the applicant says supports a finding that the DWER recommendation relies on the mean annual flow.[32]
[28] Witness statement of Mr Sasha Martens, 21 December 2020 (Exhibit 11) para 33; ts 172, 10 February 2021.
[29] Approach for Determining Sustainable Diversion Limits for South West Western Australia, SKM, 19 August 2008 (Exhibit 3, page 503).
[30] Witness statement of Mr Sasha Martens, 21 December 2020, (Exhibit 11) para 34; Mr Martens also referred in his witness statement to the SKM (2009) report (Exhibit 3, page 592) which recommends a maximum annual take of 9.2% of the mean annual flow.
[31] Exhibit 3, page 181.
[32] ts 53, 56, 9 February 2021.
The Shire contends that the Tribunal should not accept the DWER recommendation of 11% of mean annual flow as a suitable Maximum Annual Take parameter because it is not clear on the evidence how DWER came to that value. Under cross-examination, however, Mr Martens acknowledged that the DWER memo shows that the DWER recommendation of 11% of mean annual flow was not an error and that DWER's decision to exceed the SKM methodology was based on DWER's understanding of local conditions.[33]
[33] ts 180, 181, 10 February 2021.
Accordingly, the Tribunal accepts the evidence of Mr Martens and finds that the DWER recommendation in its letter of 4 August 2020 refers to 11% of mean annual flow and not 11% of mean winterflow. The Tribunal further finds that the amended application refers to 11% of the mean winterflow. Ms Epworth acknowledged under crossexamination[34] and the applicant accepts that the application has been expressed in these terms.
[34] ts 154, 10 February 2021.
The joint experts agreed that an appropriate MFT has been set by DWER at 0.13ML/day (to maintain 89% of the winterflows).[35] In Mr Martens' opinion, based on the current design,[36] the proposal would not achieve an MFT of 0.13ML/day because the by-pass is only located on the northern side of Dam 2 and a significant part of the catchment flows directly to three sections of Dam 2 and will not access the bypass.[37] However, Mr Martens stated that it was possible to engineer a solution to achieve a MFT of 0.13ML/day.[38]
[35] Joint witness statement of Mr Sasha Martens and Ms Rebecca Epworth, 29 January 2021 Exhibit 21, para 4.
[36] The Galt Geotechnics plans dated 12 September 2019 show a 300 mm inlet pipe to Dam 2C (to pass 11% of winterflow) and a 600 mm inlet pipe to a low level bypass channel (to pass 89% of winterflow): Exhibit 3, page 19.
[37] ts 193, 10 February 2021.
[38] ts 135, 10 February 2021.
The applicant contends that it is not the Tribunal's role to establish what the volumetric conversion of 11% of the mean annual flow (or mean winterflow) might be. The applicant's position is that this should be done by DWER when it grants a permit to carry out works that will obstruct or interfere with the bed and banks of the northern gully. The applicant referred to DWER's letter of 4 August 2020 which provides that the bed and banks permit 'will include relevant detailed designs consistent with the aforementioned specifications'.[39] On this basis, the applicant contends that the Tribunal should approve the amended application subject to the DWER recommendation and a condition that prevents the works from being carried out 'unless and until the grant of a bed and banks permit'.[40]
[39] Exhibit 3, page 44.
[40] The applicant further contends that it is not the role of planning authorities to impose conditions that purport to regulate matters otherwise addressed by regulators under other statutory regimes: see SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22 at [127][128] which cites SITA Australia Pty Ltd v Greater Dandenong City Council [2007] VCAT 156; (2007) 150 LGERA 26.
The Tribunal accepts the evidence of Mr Martens and finds that it is possible to engineer a solution for the low flow bypass to achieve (and measure) a MFT of 0.13ML/day. Based on Mr Martens' evidence, the Tribunal finds that the bed and banks permit could provide for the detailed design of the low flow by-pass. The Tribunal is not persuaded, however, that a bed and banks permit is the appropriate mechanism to quantify an annual volumetric take of water based on 11% of the mean annual flow (or mean winterflow). Rather, it is appropriate that the quantification of a volumetric take be made by the Tribunal if it were to grant approval for Dam 2. The Tribunal observes that the determination of a volumetric figure for the take of water (rather than a percentage) and the installation of flow gauging equipment (to measure the take of water) would assist with achieving the SDL.
Reliability of supply
In its letter to the Shire of 4 August 2020, DWER observed that the availability of surface water resources are expected to decrease due to Perth's drying climate and, therefore, catchment flow in the future is likely to be less than the previously modelled yields based on historical data.[41] DWER addresses the issue of reliability of supply as follows:[42]
The required supply of water proposed in the proponents document for the irrigation of 16.9 ha of orchard is estimated to be between 65,910 kL/year to 133,510 kL/year, with the combined capacity of all dams on the site to be 77,033 kL.
….
At present and notwithstanding Perth's drying climate, it would appear there are insufficient water resources available to support the proposed orchard of 16.9ha. No information had been provided with regard to how this issue would be managed by staging of the development or securing other water supply options alternative to surface flow. It is recommended this issue is navigated by one of the following options:
1.The development application is amended to a reduced footprint of orchard area which corresponds with available irrigation resources with conditions of approval to include the requirement for a nutrient irrigation management plan; or
2.The development application is approved in its current form with a condition applied for a nutrient irrigation management plan which will clearly identify the staging of development for the orchard relevant to demonstration of secure water resources to support each stage.
The intent of the latter option is to ensure if development of the 16.9ha orchard does occur, stages of development can only proceed if a sustainable source of water is demonstrated.
[41] Exhibit 3, page 44.
[42] Exhibit 3, page 44.
The Shire contends that the design of Dam 2 is fundamentally flawed in that the water loss through evaporation, and to a lesser extent infiltration, is so great that there will never be sufficient water stored in Dam 2 to provide an irrigation source for the proposed orchard. The Shire relies on the evidence of Mr Martens to support this contention. Mr Martens is of the opinion that even if the larger take of 7.48ML/year occurred (based on 11% of 68ML/year[43] as specified by DWER in its letter of 4 August 2020) Dam 2 would only reliably supply 0.3 hectares[44] of the orchard with the majority of stored water being lost to evaporation.[45] The hydrology experts agreed, and the Tribunal finds, that the proposed dam will not provide sufficient water to irrigate the proposed 16.9 hectare orchard.[46] Ms Epworth also agreed with the water balance modelling undertaken by Mr Martens which shows that the proposed dams would irrigate very little of the proposed trufflery.[47] Accordingly, based on the evidence of the expert hydrologists, the Tribunal finds that Dam 2 would reliably supply approximately 0.3 hectares of the proposed orchard if the applicant was allocated 7.48ML/year of surface water in accordance with the DWER recommendation.
[43] The joint experts agreed that it is unclear how DWER calculated 68ML/year as the approximate value of catchment inflow to the northern gully: Joint witness statement of Mr Sasha Martens and Ms Rebecca Epworth, 29 January 2021 (Exhibit 21), para 5, page 2. The Shire contends that the catchment inflow to the northern gully is approximately 44ML/year based on the Coterra 2017 hydrological assessment (Exhibit 2, Tab 1, page 12) and that the figure of 68ML is the combined catchment inflows for the northern and southern gully and, therefore, an overestimate.
[44] At the minimum irrigation demand of 39ML/hectare/year: witness statement of Mr Sasha Martens, 21 December 2020 Exhibit 11, para 50.
[45] Joint witness statement of Mr Sasha Martens and Ms Rebecca Epworth, 29 January 2021 (Exhibit 21), para 9, page 5.
[46] Joint witness statement of Mr Sasha Martens and Ms Rebecca Epworth, 29 January 2021 (Exhibit 21), para 9, page 3.
[47] ts 160, 10 February 2021.
The applicant assessed the proposal as having a 'moderate impact' for the purposes of the Shire of Serpentine Jarrahdale Local Planning Policy 4.4: Dams and Lakes. The applicant's position is that the impact of Dam 2 is not so great as to warrant a refusal on the basis that the potential benefits of the proposal may not materialise. The applicant points to the following two matters that support approval of the amended application. First, the vegetation to be cleared is of poor condition and small in size and, second, implementation of the DWER recommendation will ensure that the flow is not 'sensibly diminished'.
The quality of the vegetation to be cleared is considered below.
Proposed clearing of native vegetation
The Tribunal will next consider whether the removal of native vegetation to construct Dam 2 is acceptable (issue 2).
Function of riparian vegetation
There is no dispute, and the Tribunal finds, that the installation of Dam 2 will require the removal of 1.14 hectares of predominantly riparian vegetation and interfere with the banks of the northern gully in the locations shown on the plan accompanying the amended application.[48] The applicant contends that, because Dam 2 will remove the watercourse, the riparian vegetation to be cleared is not required because it will not serve its usual ecological function. In support of this contention, the applicant referred the Tribunal to the evidence of Dr Hollick who stated that the ecological function of riparian vegetation is to moderate the velocity and improve the quality of water flowing in the watercourse.[49] Dr Hollick also did not disagree with the proposition put to her in crossexamination that the purpose of policy seeking the retention of riparian vegetation is to protect the ecological values of the relevant watercourse.[50] The applicant contends that, where a dam replaces a watercourse, policies concerned with the retention of riparian vegetation are largely irrelevant and referred the Tribunal to the Environmental Protection Authority Environmental Guidance for Planning and Development, Guidance Statement No. 33 (EPA Guidance Statement No. 33).
[48] Exhibit 3, page 26.
[49] ts 88, 9 February 2021.
[50] ts 90, 9 February 2021.
Chapter B5 of EPA Guidance Statement No. 33 is concerned with the significance of waterways. It defines 'fringing vegetation' or 'riparian vegetation' as:[51]
[T]he vegetation adjacent to the water body and directly dependent on the proximity of the waterway. Fringing vegetation can include both wetland and dryland vegetation. Fringing vegetation helps to maintain the integrity of the waterways by providing habitat for many aquatic and terrestrial species, stabilising the waterway banks, dissipating water energy, providing ecological corridors, and limiting the export of sediment and nutrients.
[51] Exhibit 3, page 458.
EPA Guidance Statement No. 33 refers to a 'foreshore area' as the biophysical area that defines a river system including channels, floodway, flood fringe and associated vegetation. A 'foreshore buffer' is separately defined as 'the additional distance required between the foreshore area and any proposed development to help manage the condition of the waterway'.[52]
[52] Exhibit 3, page 458.
Chapter B5.3.2 includes a checklist of management measures for waterways in the context of local area planning and also includes a section on dams, which provides:
Dams
Approval through the land use planning process may be desirable for some categories of dams. While some are subject to DoW permitting, it is not always the case. It is recommended that the potential environmental and social impacts of the proposed dam are evaluated and if these are significant, construction should not take place. Cumulative impacts of dams on major and minor waterways should be considered.
If impacts are considered not to be significant by recognised authorities, an enforceable operational strategy for the use, storage and release of water should be prepared prior to construction of the dam. The strategy should make provision for the environmental water requirements of downstream aquatic flora and fauna as well as the rights of downstream riparian water users. Flexibility should be incorporated into the operational strategy in case new information becomes available, for example, on environmental water requirements. Compliance with the provisions of the operational strategy should be audited on a regular basis.
The dam should be properly constructed so as to meet nationally accepted standards for engineering.
The applicant acknowledges that the assessment of impacts of a proposed dam includes the impact of the dam on riparian vegetation downstream of the dam, and the impact of the removal of any riparian vegetation necessary for the construction of the dam.[53] However, the applicant contends that those impacts do not require the assessment of any impairment of riparian function for that part of the watercourse that will be replaced by the dam. The Tribunal does not accept this contention. Based on the evidence of Dr Hollick, the Tribunal finds that the function of riparian vegetation includes, amongst other things, reducing the velocity and improving the quality of water flowing in a watercourse. On this basis, the Tribunal finds that local and State policies concerned with the retention of riparian vegetation, that is proposed to be removed by the construction of Dam 2, are relevant to the Tribunal's determination.
[53] ts 212-213, 11 February 2021.
The applicant further contends that implementation of the DWER recommendation will ensure the flow delivered downstream of Dam 2 adequately replicates pre-development flows, and that the rate of flow is a matter of engineering for DWER to determine under the bed and banks permit. According to the applicant, this leaves only the question of whether the vegetation is of such quality that it ought to justify (of itself or in combination with other factors) the refusal of the amended application.
Quality of riparian vegetation to be cleared
The applicant contends that the amended application should be allowed because the amount of vegetation to be cleared is relatively small (an area of 1.14 hectares) and because the vegetation is in poor condition. In support of this contention, the applicant points to the evidence of both experts who agreed that the vegetation to be cleared is generally 'degraded' to 'good to degraded'.[54] The applicant observes that the vegetation to be cleared is in close proximity to a national park which has hundreds of hectares of good quality vegetation.[55]
[54] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021 (Exhibit 20), para 4.3.
[55] ts 213, 11 February 2021.
Mr Hick stated that he relied on the 'compound category' ('good to degraded') because 'while there are areas that were in better condition than ''degraded'', these areas weren't sufficiently large enough relative to the vegetation community being mapped to map them as being in ''good'' condition, as this would infer intactness, whereas these small patches were observed to be small and fragmented'.[56] In contrast, Dr Hollick is of the opinion that 'some patches within areas mapped as ''good to degraded'' were sufficiently intact and extensive to warrant separate mapping as discrete areas of ''good'' condition vegetation'.[57] Dr Hollick stated in crossexamination that there were about four or five patches of good condition vegetation which were larger than a 10 metre by 10 metre surveying quadrant and met the criteria of a Local Natural Area.[58] (The significance of Local Natural Areas is addressed further below).
[56] Witness statement of Mr Jason Hick, 17 December 2020 (Exhibit 18), para 6.20.
[57] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021 (Exhibit 20), para 4.3.
[58] ts 96, 9 February 2020.
In Mr Hick's opinion, the patches are of irregular shape and fragmented, which in combination with their size means that they are not worthy of mapping as separate and distinct from vegetation that surrounds them.[59] Dr Hollick agreed that each patch was irregular in shape and disconnected from each other but, in her opinion, some patches were intact[60] and protected from edge effects by the vegetation that surrounds them.[61] In cross-examination, Dr Hollick acknowledged that the edge effects would be more pronounced where the surrounding vegetation was degraded.[62]
[59] ts 97, 9 February 2020.
[60] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021 (Exhibit 20), para 7.2.
[61] ts 107-108, 9 February 2020.
[62] ts 108, 9 February 2020.
Mr Hick stated that he relied on an assessment conducted by an ecologist with Emerge Associates, Mr Tom Atkinson, who attended the subject land and mapped the vegetation the subject of the application. Mr Hick said that he subsequently attended the subject land with Mr Atkinson for a period of three and a half to four hours during which Mr Hick confirmed the assessment.[63] The applicant contends that the evidence of Mr Hick should be preferred over that of Dr Hollick because she had not undertaken a formal survey, had visited the subject land for approximately 90 minutes and had not accessed the vegetation upstream (east) of the existing dams.[64]
[63] Witness statement of Mr Jason Hick, 17 December 2020 (Exhibit 18), para 4.3; ts 111, 9 February 2020.
[64] ts 93, 95, 9 February 2020.
The Tribunal finds that the evidence of the expert ecology witnesses is relatively consistent in regard to the quality of the vegetation. Based on the evidence before it, the Tribunal finds that the 1.14 hectares of predominantly riparian vegetation to be cleared is generally in a good to degraded condition and contains some patches of native vegetation that, although fragmented, is considered to be in good or better condition compared with the surrounding degraded vegetation.
Bushland retention policies
The Tribunal will next consider the evidence of the ecology experts in the context of State and local policies relating to the retention of bushland and the extent to which the experts consider the proposed clearing of 1.41 hectares of native vegetation is consistent with those policies.
The Serpentine-Jarradale Local Biodiversity Strategy dated 8 July 2008 (Biodiversity Strategy) provides for the retention, protection and management of Local Natural Areas. Target 1 of the Biodiversity Strategy is to retain an estimated 4000 hectares of Local Natural Areas in the Shire, including the retention of all riparian vegetation, and only allow clearing in exceptional circumstances. 'Local Natural Areas' are defined in the Biodiversity Strategy as 'natural areas that exist outside of Bush Forever Sites, the DEC-managed Estate and National Parks'.[65]
[65] Exhibit 3, page 191.
The applicant contends that the term 'Local Natural Area' ought to be understood by reference to cl 5.2 of State Planning Policy 2.8 Bushland Policy for the Perth Metropolitan Region (SPP 2.8). SPP 2.8 deals with two distinct subjects being Bush Forever areas and local bushland. Clause 5.2(i) of SPP 2.8 provides that in respect of local bushland, outside Bush Forever areas, that local governments should prepare a local bushland protection strategy (as part of a wider local biodiversity strategy) for the protection and management of significant bushland sites. 'Bushland' is defined in SPP 2.8 to mean:
land on which there is vegetation which is either a remainder of the natural vegetation of the land, or, if altered, is still representative of the structure and floristics of the natural vegetation and provides the necessary habitat for native fauna.
Dr Hollick gave evidence that the Biodiversity Strategy was prepared under SPP 2.8 and that the Shire's Local Natural Areas were mapped in 2008 but that mapping does not include the subject land.[66] In Dr Hollick's opinion, the definition of Local Natural Area is not limited to mapped areas[67] and the applicant says it does not dispute this. Dr Hollick conceded that vegetation which is in a 'good to degraded' condition would not be a Local Natural Area but is of the opinion that the patches of vegetation that she regarded as 'good' did meet the condition and intactness criteria to be a Local Natural Area.[68]
[66] ts 99, 101, 9 February 2021.
[67] ts 102, 9 February 2021.
[68] ts 101, 9 February 2021; Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021 (Exhibit 20), para 9.4.2.
The applicant contends that in light of SPP 2.8, the Local Natural Area must be 'significant' and, therefore, of a certain size and condition. The applicant observes that the definition of 'Local Natural Area' requires bushland to be in a relatively natural state, which the applicant contends does not apply to the native vegetation in the current case because it is less than 'good'.
In their joint statement, the ecology experts referred to cl (ix)(b) of Appendix 2 to SPP 2.8 which provides, in respect of Bush Forever sites, a general presumption against clearing bushland or other degrading activities for areas containing wetland dependant vegetation fringing creeks, rivers and estuaries. The joint experts agreed, and the Tribunal finds, that the subject land is not a Bush Forever area. Nevertheless, the joint experts considered the factors listed in cl (ix)(b) of Schedule 2 to SPP 2.8 which may support a departure from the general presumption against clearing. Mr Hick concluded that the proposed clearing was not inconsistent with the appropriate application of the policy, while, in contrast, Dr Hollick formed the opinion that the clearing is environmentally unacceptable at the local level.[69]
[69] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021, Exhibit 20, para 9.4.3.
EPA Guidance Statement No. 33 provides in Chapter B2.3.2 that the native vegetation clearing provisions under the Environmental Protection Act 1986 (WA), Pt V, Div 2, are not expected to replace the need for planning to consider native vegetation, especially as a number of clearing permit exemptions apply to planning processes. Chapter B2.3.2, which relates to local area planning, further provides that the 'EPA encourages initiatives to achieve the maximum retention of native vegetation, restoration of the quality of bushland, and the rehabilitation of land'.[70] Mr Hick acknowledged in cross-examination that EPA Guidance Statement No. 33 is relevant to the planning process.[71] He also acknowledged that there may be local reasons to refuse an application on the grounds of unacceptable impacts on native vegetation but, in his opinion, there is no strong policy position in this case that would drive an outcome in that direction.[72]
[70] Exhibit 3, page 403-404.
[71] ts 73, 9 February 2021.
[72] ts 74, 9 February 2021.
The ecology experts agreed, and the Tribunal finds, that the northern gully is a watercourse as defined in the DWER policy entitled, A guide to the assessment of applications to clear native vegetation under Part V Division 2 of the Environmental Protection Act 1986, December 2014 (DWER clearing guidelines). Principle (f) of the DWER clearing guidelines provides that native vegetation should not be cleared if it is growing in, or in association with, an environment associated with a watercourse or wetland. The ecology experts, however, did not agree on whether the northern gully would be considered a significant watercourse for the purposes of the DWER clearing guidelines. Mr Hick is of the opinion that the northern gully is a minor ephemeral system that originates within the subject land and does not meet any of the listed criteria for significance.[73] Dr Hollick acknowledges that the listed criteria are not met by the northern gully but, in her opinion, the significance of the northern gully depends on the quantity and the period of flow and whether the waterway originates within the subject land or beyond its boundaries. Dr Hollick considers that the gully is a seasonable system that flows for an extended period each year and that the flows enter the subject land from under Firns Road.[74]
[73] Witness statement of Jason Hick, 17 December 2020 Exhibit 18), para 8.8.
[74] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021 (Exhibit 20), para 6.2.
The ecology experts also considered the acceptability of the vegetation clearing against the policy principles relating to water resources set out in Statement of Planning Policy No. 2 - Environment and Natural Resources Policy (SPP 2.0).[75] Clause 5.1(x) of SPP 2.0 provides that one of its general measures in planning decision-making is to: 'Support conservation, protection and management of native remnant vegetation where possible, to enhance soil and land quality, water quality, biodiversity, fauna habitat, landscape, amenity values and ecosystem function'. In relation to water resources, cl 5.2 of SPP 2.0 provides that planning strategies, schemes and decision making should consider mechanisms to 'protect, manage, conserve and enhance' waterways, and ensure the provision of adequate setbacks between development and the foreshores of waterways in order to maintain or improve their ecological and physical function.
[75] State Planning Policy 2.9 - Water Resources is related to SPP 2.0 and provides guidance to planning decisionmakers for consideration of water resources in land use planning strategy.
Having regard to SPP 2.0, it is Mr Hick's opinion that because the waterway is minor in terms of stream flow (originates within the subject land) and is situated within previously established agricultural land (and, therefore, historically disturbed), the proposed clearing is reasonable and appropriate. Mr Hick stated that there is a degree of necessity that Dam 2 is located in a low-lying position and, in this case, its design and volume is driven by direct waterway inflows. In Mr Hick's opinion, the northern gully 'has not been identified or attributed with a level of significance that would mean that the proposed dam is reasonably considered to result in environmental damage'.[76] Mr Hick concluded that the proposed clearing is not inconsistent with SPP 2.0.[77]
[76] Witness statement of Jason Hick, 17 December 2020 (Exhibit 18), para 11.3.
[77] Witness statement of Jason Hick, 17 December 2020 (Exhibit 18), para 11.5.
Dr Hollick did not agree with Mr Hick's position that the proposal is consistent with SPP 2.0. In Dr Hollick's opinion the northern gully does not originate within the subject land and, therefore, is of a higher stream order flow. Dr Hollick observed that the condition of vegetation is not entirely agricultural. Because of the gully's level of significance, she considered that Dam 2 would result in unacceptable environmental damage at a local level. In Dr Hollick's opinion, there is no necessity for dams to be constructed on a watercourse, as many dams are used for storage and their inflow is pumped from a nearby source.[78] In this context, Dr Hollick stated:
In terms of the dams, yes, dams generally are in a low-lying position but the current I suppose the current position for dam design is that they should not be directly capturing water from a watercourse. Many dams are used as storage. They're located off the watercourse and they are filled by pumping from the watercourse which would mean that the vegetation the riparian vegetation does not need to be cleared with that sort of dam design.[79]
[78] ts 90, 9 February 2021.
[79] ts 71, 9 February 2021.
The Tribunal accepts the evidence of Dr Hollick and finds that proposed clearing is inconsistent with SPP 2.0 because Dam 2 will be located onstream and, therefore, will require the removal of predominantly riparian vegetation which is contrary to the policy principles in SPP 2.0 to protect and enhance waterways. The Tribunal further finds that State and local bushland protection policies encourage the retention of riparian vegetation (or embody a presumption against clearing such vegetation) because of the many important ecological functions it performs.
Impact of clearing on downstream properties
The applicant contends that the clearing of riparian vegetation will have no material impact on the conservation values of the property at Lot 564, which is located immediately downstream of the subject land. In contrast, the Shire contends that the removal of riparian vegetation will detrimentally effect the conservation values of Lot 564. In support of its contention, the Shire relies on the evidence of Dr Hollick who is of the opinion that the removal of the riparian vegetation is likely to increase bank erosion, water velocity and suspended sediment and, as a consequence, result in material and negative impacts on the conservation values and ecology of Lot 564.[80] In Mr Hick's opinion any indirect impacts, such as those referred to above, would be negligible or extremely minor.[81] The Tribunal prefers the evidence of Dr Hollick and finds that the clearing of riparian vegetation is likely to result in material and negative downstream impacts on Lot 564.
[80] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021 (Exhibit 20), para 10.4.
[81] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021 (Exhibit 20), para 10.4.
The ecology experts did agree, and the Tribunal finds, that any direct impacts on Lot 546 from the removal of the riparian vegetation upstream are unlikely.[82]
Requirements of orderly and proper planning
[82] Joint witness statement of Dr Penny Hollick and Jason Hick, 22 January 2021, (Exhibit 20), para 10.2.
In considering the amended application, the Tribunal is required by cl 67(b) of the Deemed Provisions to have due regard to the requirements of orderly and proper planning including any proposed local planning scheme or amendment to TPS 2 that has been advertised. Consequently, in its determination, the Tribunal has considered the provisions of TPS 2 and the Shire of SerpentineJarrahdale Draft Local Planning Scheme No 3, which was publicly advertised between 19 September 2019 and 10 January 2020.
The meaning of the phrase 'orderly and proper planning' was considered by the Western Australia Supreme Court in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall). Pritchard J held at [179]-[180]:
… The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
In Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59 (Mt Lawley) at [47], the Tribunal recognised that '[s]ustainability is now a core element of orderly and proper planning'. The Tribunal in Mt Lawley considered the meaning of the term 'sustainability,' and determined that (at [48]):
Sustainability requires the integration of the social, economic and environmental consequences of land use and development in order to deliver a better quality of life now and for future generations[.]
A stated objective of the PD Act is to promote the sustainable use and development of land in the State: s 3(1)(c) of the PD Act. The term 'sustainable development', which is not defined in the PD Act, was recently considered by the Tribunal in Robertson and City of Albany [2019] WASAT 3 (Robertson) at [174]-[180]. In Robertson, the Tribunal reaffirmed that sustainable development is a core element of orderly and proper planning and referred to the seminal decision of Preston J of the New South Wales Land and Environment Court in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256 (Telstra). One of the six main principles of sustainable development referred to in Telstra at [110] and [112] is the effective integration of economic, social and environmental considerations in the decisionmaking process.
The Shire contends that the proposal to construct Dam 2 is not sustainable because it will not be able to reliably irrigate any area of the orchard.[83] The hydrology experts agreed, and the Tribunal finds, that Dam 2 would irrigate very little of the proposed trufflery. It is the applicant's position that the proposed clearing of vegetation, due to its quality, is justified notwithstanding the water requirements of the orchard would not be met. Mr Hick agreed with this position.[84]
[83] ts 233, 11 February 2021.
[84] ts 71, 9 February 2021.
The applicant contends that whether the proposal can and will be carried out in its entirety is not a matter that the Tribunal can have regard to because it is not a relevant planning consideration. The applicant considered that a fair analogy is the question of financial viability and referred the Tribunal to the decision in Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77 in which Barker J stated at [71]:
The relevance of economic purpose of a proposed land use and its economic consequences have been considered in a number of decisions. It is well established that factors such as economic structure of an applicant, the possible profit or loss of a proposed venture and the viability of a proposed project are not relevant town planning considerations: Gosford Shire Council v Anthony George Pty Ltd (No 2) (1968) 16 LGRA 165. In Anglo Estates Pty Ltd v Western Australian Planning Commission (1996) 18 SR (WA) 19 at 28, the Appeal Tribunal (differently constituted) applied this principle in deciding that it was not a function of the Commission (or the Tribunal) to inquire into the viability of a tree farming project which the appellant proposed to implement by means of approval of a survey-strata plan under the StrataTitles Act 1985 (WA).
The Tribunal finds, in the circumstances of this case, that the capacity of Dam 2 to reliably irrigate the proposed orchard is relevant to the Tribunal's determination of the appropriate and sustainable allocation of surface water. Based on the evidence before it, the Tribunal finds that the construction of Dam 2 would require the removal of 1.14 hectares of predominantly riparian vegetation (of good to degraded condition) in circumstances where the available water from Dam 2 would reliably irrigate approximately 0.3 hectares of the proposed 16.9 hectare orchard. Because Dam 2 will reliably irrigate very little of the proposed trufflery, the Tribunal finds that the construction of Dam 2 is inconsistent with the principles of sustainable development.
Accordingly, the Tribunal finds that the proposed construction of Dam 2 does not satisfy the requirements of orderly and proper planning as enunciated by the Tribunal in Mt Lawley and by Pritchard J in Marshall.
Permissibility of the orchard use
There is no dispute, and the Tribunal finds, that the proposed trufflery orchard use falls within the meaning of a 'Rural Use' as defined in Appendix 1 to TPS 2. Pursuant to cl 3.2.2 of TPS 2 and cl 1 of the Deemed Provisions, a 'Rural Use' is permitted in the 'Rural' zone if it complies with any relevant development standards and requirements of TPS 2.
Accordingly, the Tribunal finds that the proposed trufflery orchard is a use that is capable of approval under TPS 2.
The parties do not dispute, and the Tribunal accepts, that the 'Rural Use' is consistent with the objective of the 'Rural' zone in cl 5.10.1 of TPS 2, the protection of the rural landscape in cl 3.3.3 of the Shire of Serpentine Jarrahdale Draft Local Planning Strategy and the intent of State Planning Policy 2.5 - Rural Planning. Accordingly, the Tribunal will affirm the Shire's decision to approve the trufflery orchard use.
The Council approval imposed the following conditions that relate to the operation of the orchard:
f.The planting of the orchard must be substantially commenced, to the satisfaction of the Shire of Serpentine Jarrahdale and DWER, within 2 years of the date of this approval.
g.Prior to the planting of the orchard, a Nutrient and Irrigation Management Plan must be submitted to and approved by the Shire of Serpentine Jarrahdale and DWER. The Nutrient and Irrigation Management Plan is to identify the staging of development for the orchard relevant to the water supply of the existing approved dam and retrospectively approved 6 dams, to the satisfaction of the Shire of Serpentine Jarrahdale and the DWER. Development shall be undertaken in accordance with the Nutrient and Irrigation Management Plan, once approved, and must be implemented at all times.
h.No sale of any product by retail is to occur from the premises, unless otherwise approved by the Shire of Serpentine Jarrahdale
The applicant does not oppose a condition requiring the trufflery to be staged so as to ensure that there is adequate water to support each stage. However, the applicant does oppose any condition requiring a Nutrient Irrigation Management Plan (management plan), or a condition that requires the staging of the trufflery to be in accordance with a plan approved by the Shire.
The applicant contends that the size of the trufflery would be informed by the amount of water available and, therefore, there is no need for a staging plan because the planting of trees will not occur unless and until there is sufficient water to support them.
The applicant further contends that a management plan is unnecessary because truffles require very low levels of fertiliser. In support of this contention, the applicant referred the Tribunal to the ArborCarbon advice[85] and the letter to the Shire from the Department of Primary Industries and Regional Development dated 6 August 2020 (which states that the 'annual requirements for nitrogen and phosphorous is very low').[86] The Tribunal finds, based on this evidence, that truffles require low levels of fertiliser. However, the Tribunal is not satisfied that the proposed orchard should proceed without a management plan. The Tribunal finds, based on evidence before it, that a management plan is necessary to address the nutrient demands of the trufflery (as only low levels of fertiliser are required) and provide for the staging of the orchard relative to the supply of water.
[85] Exhibit 3, page 28.
[86] Exhibit 3, page 48.
For the above reasons, the Tribunal will affirm the Shire's decision to approve the trufflery orchard subject to a condition requiring the preparation of a management plan to be approved by the Shire. The applicant has agreed to a condition that prevents the sale of any product by retail from the subject land unless otherwise approved by the Shire and the Tribunal finds that a condition to this effect should be imposed. The Tribunal will impose a further condition that the planting of the proposed orchard is to be substantially commenced within 4 years of the date of the Tribunal's determination. Based on the need to secure adequate water resources, it is the applicant's position that 4 years is not a reasonable timeframe for substantial commencement of the orchard. The Tribunal observes that the applicant can, if necessary, seek an extension of time from the Shire to commence planting.
Conclusion
The construction of Dam 2 will require the removal of 1.4 hectares of predominantly riparian vegetation in circumstances where Dam 2 will not reliably irrigate the area of trufflery orchard proposed. The Tribunal sees no cogent reason to depart from State and local policies which encourage the retention of riparian vegetation in circumstances where the construction of Dam 2 (requiring the removal of predominantly riparian vegetation) would not reliably achieve its irrigation purpose.
Accordingly, having due regard to the relevant matters in cl 67 of the Deemed Provisions, the correct and preferable decision is for the Tribunal to allow in part the amended application under s 252(1) of the PD Act. The Tribunal will set aside the Shire's decision and substitute a new decision refusing the construction of Dams 2A, 2B and 2C and the clearing of 1.14 hectares of vegetation. In substituting a new decision, the Tribunal will approve the proposed trufflery orchard which is a permitted use in the 'Rural' zone.
In light of the Tribunal's conclusion, it is not necessary for the Tribunal to determine whether the DWER recommendation of 11% of the mean annual flow is a sustainable yield or to quantify a volumetric take.
Orders
Subject to hearing from the parties, the Tribunal proposes to make the following orders:
1.The application is allowed in part.
2.The respondent's decision made on 21 September 2020 in respect of development application PA17/958 as amended by letter from Planning Solutions dated 1 July 2020 is set aside and the following decision substituted:
ADevelopment application PA 17/958 dated 19 October 2017 as amended by letter dated 1 July 2020 from Planning Solutions (amended application) for the construction of Dams 2A, 2B and 2C and the clearing of 1.14 hectares of vegetation at Lot 2 (206) Firns Road, Serpentine is refused.
BThe amended application for the use of Lot 2 (206) Firns Road, Serpentine, as an orchard for producing truffles within existing (already cleared) areas shown hatched on the site plan comprising Attachment 2 to the amended application and the removal of Dams 3B and 3C shown on the site location plan forming Attachment 1 to the amended application are approved subject to the following conditions:
(1)The planting of the orchard must be substantially commenced within 4 years of the date of this approval.
(2)Prior to the planting of the orchard, a Nutrient and Irrigation Management Plan (management plan) must be submitted to and approved by the Shire of Serpentine-Jarrahdale. The management plan is to identify the staging of the orchard by reference to the demonstration of secure water supply to support each stage. The development shall be carried out at all times in accordance with the approved management plan.
(3)No sale of any product by retail is to occur from the premises, unless otherwise approved by the Shire of Serpentine-Jarrahdale.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
29 APRIL 2021
Annexure A
Council Approval of 21 September 2020
That Council
APPROVES the development application dated 19 October 2017 as amended by the letter from Planning Solutions dated 1 July 2020 for:
• Retrospective approval for 6 dams;
• Removal of 2 existing dams (3B, 3C);
• the new establishment of an orchard for the purpose of producing truffles, within existing (already cleared) areas of the property
at Lot 822 (206) Firns Road, Serpentine pursuant to the Shire of Serpentine Jarrahdale Local Planning Scheme No.2 and the Metropolitan Region Scheme, subject to the following conditions:
a.The development is to be carried out in compliance with the plans and documentation listed below and endorsed with the Shire of Serpentine Jarrahdale stamp, except where amended by other conditions and also not including the proposed dams 2A, 2B and 2C and the proposed 1.14 hectares of vegetation clearing which are to be deleted:
Plans and Specification:
Planning Solutions Revised Application received on 1 July 2020
Galt Geotechnics – drawing J1701059 – 0001B titled ‘Overall plan of proposed northern dam 2 with diversion channel’ dated 09.09.2019b.Proposed Dams 2A, 2B and 2C and the proposed 1.14 hectares of vegetation clearing being deleted from the plans and documentation, and such plans and documentation to be updated to the satisfaction of the Shire of Serpentine Jarrahdale based upon the revised water storage resulting from the removal of Dams 2A, 2B and 2C from this approval.
c.In respect of the existing dams granted retrospective approval under this determination, a suitably qualified Civil and Hydrological Engineer is to structurally certify these existing dams as being safe and structurally sound, to the satisfaction of the Shire of Serpentine Jarrahdale and DWER. Should the Civil and Hydrological Engineer identify any remediation works being required to achieve structural safety and soundness, these works must be undertaken to the specification required by the suitably qualified Civil and Hydrological Engineer to the satisfaction of the Shire of Serpentine Jarrahdale and DWER.
d.Upon completing any required remediation works of the existing dams, a suitably qualified Civil and Hydrological Engineer must certify that the existing dams have been remediated in accordance with the approved plans and are structurally safe, to the satisfaction of the Shire of Serpentine Jarrahdale and DWER. The certification must be submitted to the Shire of Serpentine Jarrahdale and DWER within 28 days after completion of the remediation of each existing dam.
e. Prior to any required remediation of existing dams, a Construction, Sediment and Erosion Management Plan must be submitted to and approved by the Shire of Serpentine Jarrahdale and DWER. This must demonstrate erosion and sediment control measures that will be undertaken during the remediation phase of the existing dams, to prevent any downstream impacts. The approved Construction, Sediment and Erosion Management Plan must be implemented in its entirety to the satisfaction of the Shire of Serpentine Jarrahdale and the DWER.
f.The planting of the orchard must be substantially commenced, to the satisfaction of the Shire of Serpentine Jarrahdale and DWER, within 2 years of the date of this approval.
g.Prior to the planting of the orchard, a Nutrient and Irrigation Management Plan must be submitted to and approved by the Shire of Serpentine Jarrahdale and DWER. The Nutrient and Irrigation Management Plan is to identify the staging of development for the orchard relevant to the water supply of the existing approved dam and retrospectively approved 6 dams, to the satisfaction of the Shire of Serpentine Jarrahdale and the DWER. Development shall be undertaken in accordance with the Nutrient and Irrigation Management Plan, once approved, and must be implemented at all times.
h.No sale of any product by retail is to occur from the premises, unless otherwise approved by the Shire of Serpentine Jarrahdale.
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