SILVESTRO and CITY OF MANDURAH
[2011] WASAT 36
•4 MARCH 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SILVESTRO and CITY OF MANDURAH [2011] WASAT 36
MEMBER: MS M CONNOR (MEMBER)
HEARD: 31 JANUARY 2011
DELIVERED : 4 MARCH 2011
FILE NO/S: DR 115 of 2010
BETWEEN: FRANK SILVESTRO
Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Town planning Development application 'Finger' jetty wholly contained within the 'Mooring' envelope but extends outside the 'Jetty' envelope Whether appropriate to depart from local planning policy requirements Navigability and safety Public interest Orderly and proper planning Adverse planning precedent
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 4.11, cl 7.5, cl 7.5.1, cl 7.6, cl 7.11, cl 9.6, cl 9.6.1, cl 9.6.2.2
Peel Region Scheme, cl 47
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr J Algeri (Acting as Agent)
Respondent: Ms A Butterworth (Acting as Agent)
Solicitors:
Applicant: Algeri Planning & Appeals (Town Planners)
Respondent: Allerding & Associates
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Silvestro applied to the State Administrative Tribunal for review of the City of Mandurah's decision refusing planning approval for the replacement of an existing 'T' style floating jetty with a 'Finger' jetty at No 1 Abrolhos Quays, Wannanup.
The principal issue for determination in these proceedings was whether discretion should be exercised to approve a Finger jetty that departed from the requirements of the policy framework, which on the face would not support such a jetty. Of particular concern was the impact of the jetty on the navigability and safety of the canal waterway, the public interest and whether the proposal was consistent with orderly and proper planning of the locality.
The Tribunal determined that there was no cogent and adequate reason in the circumstances of this case as to why the planning principles that found expression in the relevant planning policy should be departed from and the proposal approved. Further, the Tribunal found that the proposal would set an adverse planning precedent in the circumstances of the case. The application for review was dismissed and the decision of the respondent affirmed.
Introduction
Mr Frank Silvestro (applicant) sought approval from the City of Mandurah (respondent or Council) to replace the existing 'T' style floating jetty at No 1 (Lot 368) Abrolhos Quays, Wannanup with a 'Finger' jetty. The planning application was refused under delegated authority by Manager Planning and Projects on 31 March 2010 for the following reasons:
1.The proposal is inconsistent with Local Planning Policy No 11 part 2.1A(a) in that the jetty is not wholly contained within the approved jetty envelop[e] as per the civil engineering plans for canal estates approved by the City of Mandurah and/or the Department of Transport; and
2.The proposal is inconsistent with Local Planning Policy No 11 part 2.1A(b) in that the jetty and the associated method of vessel mooring would unduly impact on the navigability of the canal waterway.
Mr Silvestro, on 16 April 2010, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
Between May and August 2010 the parties engaged in a mediation process, facilitated by a Tribunal member, which resulted in additional information being provided to the respondent. Consequently, the respondent was invited by the Tribunal to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA). The respondent affirmed the previous decision refusing the development application.
Proposal
The application proposes to modify the existing 'T' style floating jetty that runs parallel to the canal wall of No 1 Abrolhos Quay to a 'Finger' style jetty that will be placed perpendicular to the canal wall. It is intended that the existing gangway will remain in the same position on the canal wall.
The proposed jetty is approximately 7 metres long and 2.5 metres wide and extends outside of the prescribed 'Jetty Envelope' but is wholly within the 'Mooring Envelope' as shown on approved engineering plans maintained by the respondent.
Planning framework
Statutory
No 1 Abrolhos Quays, Wannanup is part of a canal estate in the Port Bouvard Northport Precinct and is more particularly described as Lot 368 on Deposited Plan 24827 Certificate of Title Volume 2211 Folio 284 (Lot 368). Lot 368 is comprised of both land and artificial waterway.
The certificate issued by the Western Australian Planning Commission (WAPC) under cl 47 of the Peel Region Scheme (PRS) states that Lot 368 is zoned 'Urban' and abuts 'Waterways Reservation' in the PRS. The plan attached to the certificate shows that the portion of Lot 368 that extends into the artificial waterway is zoned 'Urban'. The existing jetty structure is wholly contained within zoned land in the PRS, whereas portion of the proposed jetty will be located within the 'Waterways Reservation' of the PRS.
The application for review before the Tribunal relates only to the decision made by the respondent with respect to City of Mandurah Town Planning Scheme No 3 (TPS 3 or Scheme), although the Tribunal notes that on 9 December 2010 the respondent, under the Instrument of Delegation gazetted 18 December 2008, issued a refusal of the proposed development under the PRS.
Lot 368 is zoned 'Canal' under TPS 3. The existing jetty structure is wholly contained within zoned land under TPS 3, whereas approximately 5 metres of the proposed jetty is situated in the 'Waterways Reservation' of the PRS.
Clause 4.11 of TPS 3 specifies the purpose and intent of the Canal Zone as follows:
The Canal Zone is intended to provide for the canal development [sic] that have a high standard of amenity and have minimal impacts on the environmental qualities of the area.
An Outline Development Plan (ODP) has been prepared and approved for the area, pursuant to cl 7.11 of TPS 3, however, the ODP does not contain any specific provisions regarding the construction of jetties.
Clause 7.6 of the Scheme provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, cl 7.5 of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•the provisions of the Scheme (cl 7.5.1(a));
•any policy of the [Western Australian Planning] Commission or any planning policy adopted by the Government of the State of Western Australia (cl 7.5.1(d));
•any planning policy adopted by the Council under the provision of cl 9.6 of the Scheme (cl 7.5.1(e));
•any relevant submissions or objection received on the application (cl 7.5.1(h));
•any representations made by a public authority and the rights and powers of that public authority (cl 7.5.1(w));
•the existing and likely future amenity of the neighbourhood (cl 7.5.1(x)); and
•the public interest (cl 7.5.1(y)).
Clause 9.6.1 of the Scheme empowers the Council to make planning policies in respect of any matter related to the planning and development of the Scheme area. A local planning policy is not part of the Scheme and does not bind the Council in respect of any application for planning approval, however, before making a determination, the Council is required to have due regard to the provisions of the policy and the objectives which the Policy is designed to achieve (cl 9.6.2.2).
Policy
Clause 7.5 of the Scheme requires that due regard be given to any policy of the WAPC or any planning policy adopted by the Council under the provision of cl 9.6, in considering an application for planning approval.
A policy of the WAPC that has limited relevance to this application is Policy No DC 1.8 Canal Estates and other Artificial Waterway Developments (DC 1.8). This policy more specifically relates to the requirements for the assessment and approval of canal estate development, however, there are some design principles relating to jetties that are pertinent to this case and include:
•at least one mooring envelope shall be shown in the artificial waterway at each property boundary, of sufficient [in] size to contain all jetties, mooring piles and design boat;
•in the case of single residential lots, the width of the lot and the location of the mooring should be such that the moored vessel is entirely in the water area bounded by the extension of the property boundaries;
•end mooring should be avoided in main navigation channels; [and]
•all moorings, jetties and launching ramps must be contained within the mooring envelope and no intrusion into the navigation channel will be permitted.
Further, DC 1.8 supports the adoption of a local planning policy where it is expected that there will be a large number of boat ramps and jetties within the Canal Zone.
Local Planning Policy LPP 11 Canal Waterways Structures (LPP 11) has been adopted by the respondent under cl 9.6 of the Scheme and augments the general design principles embodied in DC 1.8. The objective of LPP 11 is to provide regulation over structures proposed within artificial canal waterways to ensure the following:
•[the] proposed waterway structures will not have any adverse impacts with regards to amenity and environmental sensitivity;
•the construction of waterway structures maintains navigability in order to sustain safe and useable waterways;
•the proliferation of waterway structures is controlled to avoid the alienation of public waterways and to maintain their aesthetic value; and
•the assessment and approval process for the construction of any waterway structure[s] is clearly identified.
LPP 11 references both 'Jetty Envelope' and 'Mooring Envelope' which are defined in the policy as follows:
'Jetty Envelope' means a designated area as identified by the endorsed civil engineering deposited plan for the subject property in which the jetty is to be wholly constructed and contained within.
'Mooring Envelope' means a designated area as identified by the endorsed civil engineering deposited plan for the subject property in which any mooring pile, boat or boat lifting structure is to be wholly constructed and contained within. The mooring envelope serves as the designated area for the storage and mooring of any permitted vessel.
Part 2.1 of LPP 11 sets out provisions relating to design requirements and assessment criteria for the construction of jetties in artificial waterways. The relevant provisions relating to this application are as follows:
2.1AAssessment Criteria
All jetties shall be subject to the following criteria, and as shown in Figure 1:
(a)Jetties to be wholly located within the approved jetty envelope as per the civil engineering plans for canal estates approved by the City of Mandurah and/or the Department of Transport;
(b)Jetties shall not unduly impact on the navigability of the canal waterway;
(c)Jetties shall not unduly impact on the amenity of the canal waterway and/or surrounding properties.
…
2.1BJetty Design Requirements
Jetties are to be designed in accordance with the following criteria, as demonstrated in Figure 1.
(a)The configuration is to be one of the following arrangements:
•Finger shaped;
•'T' shaped;
•'L' shaped; or
•Land Backed.
(b)The primary walkway is to have a maximum length of 15 metres (subject to the size and dimensions of the approved jetty envelope);
(c)The primary walkway to be a minimum width of 0.9 [metres] and maximum width of 2.0 [metres]; and
…
Issues
The principal issue in this proceeding is whether, given the circumstances of this case, discretion should be exercised to approve a Finger jetty that departs from the requirements of the policy framework that has been formulated by the respondent. Of particular relevance to this issue is the impact of the jetty on the navigability and safety of the canal waterway, the public interest and whether the proposal is consistent with orderly and proper planning of the locality.
The Tribunal had the benefit of expert evidence from Mr Larry Adams, maritime planning team leader of Department of Transport who has considerable experience in planning and design of maritime structures, called on behalf of the respondent; and, Mr Trent Hunt, a consultant engineer with experience in coastal and marine engineering, called on behalf of the applicant. In addition, the representatives of both parties gave expert planning evidence in these proceedings.
The following points were agreed by the parties:
1)The existing 'T' shaped jetty is wholly contained within the Jetty Envelope allocated for Lot 368.
2)The proposed jetty extends outside of the prescribed Jetty Envelope but is wholly contained within the Mooring Envelope for the subject land and does not extend into the main navigation channel.
3)The subject canal is a main navigational channel and that there is additional width of waterway at this particular point in the canal estate. The subject lot is near an intersecting section of the waterway.
4)The proposed jetty is an 'end mooring' that allows for two vessels to be moored at any one time.
5)Vessels measuring no more than 7 metres moored at the proposed jetty would be wholly contained within the Mooring Envelope. Vessels of this size moored at the jetty would not unduly impact on the navigability and safety of the waterway.
6)Vessels greater than 7 metres in length would protrude into the navigation channel.
7)The proposed jetty results in a reduction in the maximum vessel length at Lot 368.
The proposed jetty does not meet the following two design requirements specified in LPP 11 (refer to Figure 1 of LPP 11):
•the jetty being contained wholly within the Jetty Envelope; and
•the maximum width of the primary walkway being 2 metres.
It would appear that nothing turns on the width of the proposed primary walkway being 2.5 metres, as no evidence was led by the respondent contending that such a departure would warrant refusal of the application. The respondent's reasons for refusal of the application focused on the adverse effect of the proposed jetty on the navigability and safety of the waterway.
The engineering experts agreed that a vessel less than 7 metres in length moored at the proposed jetty would not unduly impact the safety and navigability of the waterway. However, it was agreed that a vessel moored at the jetty that was more than 7 metres in length would adversely impact on the waterway because it would protrude into the fairway, reducing the navigable safety of the main navigation channel.
The key navigational and safety concern that arises from vessels less than 7 metres in length using the jetty is in the operation of jetty as there is the need to moor the vessel bow in. This arrangement requires the vessel to reverse out of the berth into the main navigation fairway. An additional concern is the ability to moor a second boat on the northern side of the jetty which, as agreed by the experts, would reduce sightline visibility to the vessel moored on the southern side of the jetty when reversing into the fairway.
Mr Hunt agreed that 'T' and 'L' shaped jetties were preferable in main navigation channels as they provide ease of navigation, however, he considered that in this instance, a Finger jetty would be acceptable as it was located in an area that had more than the safe minimum width for a navigation fairway and a turning circle of greater than 55 metres immediately north of Lot 368. In addition, he considered that the proposed jetty offered the same level of safety and navigability as the acceptable Finger jetty shown in Fig 1 of LPP 11 and therefore was an acceptable arrangement. However, in concurrent evidence, it was accepted that an arrangement such as shown in Fig 1 would not meet Australian Standards, as the jetty is required to be 80 % of the vessel length.
Mr Adam supported the policy position of DC 1.8, that is, that end moorings should be avoided in main navigation channels, and held the view that such moorings should only be considered at the end of terminating canals or planned high density zones. He considered that navigable safety would be compromised in this instance as the proposed jetty arrangement would increase the risk of accidents and require policing to ensure compliance in relation to vessel size.
The applicant also raised the issue of consistency in decision-making and referred the Tribunal to a decision of the respondent approving a 9 metre Finger jetty at No 30 Ragamuffin Point, Halls Head. Although both applications involve a Finger jetty that extends outside the prescribed Jetty Envelope but wholly contained within the Mooring Envelope, the jetty at Ragamuffin Point is located in a terminating canal and not on a main navigation channel, which is a significant distinguishing factor. The difference in circumstance is highlighted by the fact that there are 12 potential jetties between the Ragamuffin Point site and the termination of the canal, whereas, there is the potential for some 200 jetties beyond the point of Lot 368. The engineering experts acknowledged that there are other Finger jetties elsewhere in the Port Bouvard Northport Precinct but none were considered comparable as they are all located adjacent to higher density lots provided for in the civil engineering plans, or within terminating canals.
Tribunal's findings
The Tribunal recognises the importance and role of policy in guiding the exercise of planning discretion, although policies should not be inflexibly applied so that where a variance may be appropriate it is simply ignored. However, where a policy is properly adopted and is based on sound planning principles, it is a matter of establishing why the policy should not be applied: Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433.
The purpose of LPP 11 is to provide regulation over structures within artificial waterways to ensure, amongst other things, that such 'structures maintain navigability in order to sustain safe and useable waterways'. The proposed Finger jetty necessitates a reserving manoeuvre into a main navigation channel of the canal estate, which will undoubtedly increase risk of accidents. The Tribunal acknowledges that although the subject lot is located at a point where there is additional width in the waterway, it is also located at the junction of two intersecting canals which, according to both engineering experts, is likely to experience increased traffic flows. The Tribunal is not persuaded that the navigability and safety of the waterway will not be compromised by the proposed jetty arrangement and considers such a proposal to be in conflict with the public interest. The Tribunal finds that in this case there is no cogent and adequate reason, in the circumstance of this case, to support a departure from the LPP 11.
Further, the issue of adverse planning precedent was raised by the respondent. The circumstances in which precedent is a relevant consideration in a planning assessment has been detailed in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74]. In this case, each of the criteria is met. The proposed jetty, for the reasons expressed above, is 'not unobjectionable' and, given the subdivisional design and the civil engineering in the canal estate, there is more than a mere chance or possibility that there may be later undistinguishable applications. Therefore, adverse planning is a relevant consideration. The Tribunal is of the view that cumulative impacts of developments such as the proposal, in a main navigation channel, would have significant adverse affect on the navigability and safety of the waterway and would be contrary to the orderly and proper planning of the locality. In the circumstances of this case, the consideration of adverse planning precedent also warrants refusal of the application.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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