SMITH and CITY OF ALBANY - [2008] WASAT 251

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SMITH and CITY OF ALBANY [2008] WASAT 251

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 21 AUGUST 2008

DELIVERED : 30 OCTOBER 2008

FILE NO/S: DR 188 of 2008

BETWEEN: HAROLD JOHN SMITH
DONALD MICHAEL BURKE
JAN MARIE SMITH
Applicants
AND
CITY OF ALBANY
Respondent

Catchwords:

Town planning - Development application - Dual zoning - Residential development - Reserved land - Parks and recreation - Ultimate purpose - Foreshore management plan - Waterways Conservation Act - Embankment - Erosion - Excavation or filling - Natural sedimentation process - Grasses - Root mat - Native vegetation - Fence - Retaining wall - Sea wall - Boat ramp - Visual amenity - Context of the setting - Natural land forms - Whether planning consent was required - Whether the proposal was consistent with the ultimate purpose of the reserve - Whether the proposal had the potential to cause environmental degradation - Whether the proposal would adversely affect the amenity of the locality

Legislation:

City of Albany Town Planning Scheme No 3, Pt II, cl 2.2, cl 5.4, cl 5.1.2.2, cl 5.1.2.2(b), cl 5.2.1.1
Planning and Development Act 2005 (WA), s 250(1)
Waterway Conservation Act 1976 (WA)
Waterways Conservation Regulations 1981 (WA), reg 8, reg 9.1

Result:

Application for review allowed in part

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr G Bride (Acting as Agent)

Solicitors:

Applicants: Self-represented
Respondent: City of Albany

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

Hamzah and City of Fremantle [2006] WASAT 360
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application for a retaining wall and boat ramps at No 5 (Lot 23) and No 6 (Lot 24) Stubbs Road, Little Grove and No 32 (part lot 22) Marine Terrace, Little Grove.
The issues were:
•whether planning consent was required;
•whether the proposal was consistent with the ultimate purpose of the reserve;
•whether the proposal had the potential to cause environmental damage; and
•whether the proposal would adversely affect the amenity of the locality.
The Tribunal determined that planning consent was required for the retaining walls and the boat ramps including retrospective planning approval for the two existing boat ramps.
The Tribunal found that the retaining wall was inconsistent with the ultimate purpose of the reserve, that it had the potential to have an adverse impact on the environment and that it would have an adverse impact on the visual amenity of the locality.
The Tribunal did not find that the existing boats ramps, formed out of grasses, were inconsistent with the ultimate purpose of the reserve or that they would have an adverse impact on the visual amenity of the locality. In the case of the third, or proposed boat ramp, the Tribunal found there was potential for shortterm environmental damage while the ramp was formed and until the grasses became established. However, the Tribunal found the shortterm concerns were not sufficient to establish that the new boat ramp would have the potential to cause environmental degradation.
The Tribunal found that the part of the application for review that related to the retaining wall should be dismissed but that the part of the application for review that related to the boat ramps should be allowed.

Introduction

These proceedings involve an application brought by Mr Harold Smith, Ms Jan Smith and Mr Donald Burke (applicants), pursuant to s 250(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Albany (City or Council) made on 22 April 2008 to refuse development approval for a sea retaining wall (retaining wall) and boat ramps at No 5 (Lot 23) and 6 (Lot 24) Stubbs Road, Little Grove and No 32 (part lot 22) Marine Terrace, Little Grove (site or sites or Lots 22, 23 and 24 Stubbs Road).
This matter has a lengthy background. Mr Smith originally applied to the Shire of Albany for permission to build a retaining wall for Lot 22 on 11 April 1997. The matter appears to have lapsed pending the preparation of a Woolstores to Frenchman Bay Foreshore Management Plan (Foreshore Management Plan). After completion of this Foreshore Management Plan, Mr Smith made an application to the Albany Waterways Management Authority which was refused in August 2001. The matter appears to have continued informally, pending further discussions including whether or not formal planning approval was required. In December 2007, Mr Smith was joined by his neighbours and on 2 January 2008 an application was made to the Department of Water to construct a retaining wall for Lots 22, 23 and 24 Stubbs Road. This was refused on 19 February 2008. The applicants then applied to the City for a building licence for the retaining walls and associated boat ramps. On 6 March, the City wrote to the applicants and advised that a planning scheme consent was required prior to the issue of a building licence. The planning application was lodged and subsequently refused.

Site and locality

The site consists of three adjacent lots facing Stubbs Road with the northern lot (Lot 22) being a corner lot with frontage to Marine Terrace, a small street that finishes in a culdesac adjoining the reserve adjacent to Princess Royal Harbour. The eastern boundaries of the lots adjoin the foreshore of the Princess Royal Harbour. Witness statements from Mr Hopkinson (Department of Water) and Mr Humphrey (City of Albany) both describe the eastern boundary of the lots as the high watermark of Princess Royal Harbour.
The submitted evidence lacks precision with reference to some of the site information. It is sufficient for the purposes of this review to note that each lot is approximately 30 metres wide with the side boundaries at right angles to Stubbs Road with the rear boundary at an angle to Stubbs Road and the lots increasing in depth (and size) from the north (Lot 22) to the south (Lot 24).
Each lot contains an existing dwelling, with the dwelling on the northern lot (Lot 22) being closest to the foreshore with an approximate setback of 30 metres. All lots have grassed embankments near or at the eastern edge of the lots. The two northern lots have grassed boat launching ramps cut into the embankments.
The lack of precision is more noticeable when dealing with the height of the embankment and the proposed height of the retaining wall. Mr Hopkinson, in his witness statement, describes the height of the embankments as 400600mm. The drawings submitted with the application show the height of the proposed retaining wall as approximately 1.35 metres.
Mr Smith, in his grounds of appeal to the Tribunal, stated:
… our application was to build only a retaining wall (not retaining wall, boat launching ramp and filling of land of more than 600mm). We are not filling the land more than 600mm. The height of the proposed retaining wall is the height of the existing bank as shown on the drawing submitted.
The Tribunal had the benefit of a viewing in the company of the parties. Based on the viewing, Mr Hopkinson's estimate of the height appears to be close to (but possibly underestimates) the existing height. The actual height of the existing embankment has no relevance to the outcome of this review but it will be mentioned in these reasons when dealing with issues of amenity and development approval with an explanation of why accurate information about the existing height of the embankment is not relevant.

Planning framework

Each of the three sites has a dual zoning under the City of Albany's Town Planning Scheme No 3 (TPS 3) with the bulk of the each site on the (western portion (closest to Stubbs Road) being 'residential development' and the eastern portion (closest to the foreshore) being 'parks and recreation'.
The proposed development will occur within the portion of the site zoned 'Parks and Recreation'.
The area of the site zoned 'Parks and Recreation' is deemed Reserved Land under TPS 3 and is subject to the requirements of Pt II of TPS 3.
The respondent notes that the 'residential development' part of the site is subject to the Little Grove Conceptual Structure Plan. However, because of the nature of the development proposal and because it occurs outside the 'residential development' zone, the Tribunal agrees with the respondent that the Structure Plan has no direct relevance to the review.
Clause 5.4 of TPS 3 provides that in determining a development application, the Council shall have regard to various matters. The Tribunal considers that relevant matters include:
(g)in the case of land reserved under the Scheme, the ultimate purpose intended for the reserve;
…
(l)the likely future effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
(n) the preservation of the amenity of the locality;
…
(w)whether the proposal is likely to cause soil erosion or degradation;
…
(y)any relevant submission received on the application; and
…
(zb) any other planning consideration the Council considers relevant.
Relevant to consideration of the application is the Foreshore Management Plan which includes the parts of the site(s) zoned 'Parks and Recreation' and the adjoining foreshore. The Foreshore Management Plan was prepared by the Water and Rivers Commission, the Albany Waterways Authority and the City of Albany in 2000.
Also relevant to this review are the Waterway Conservation Act 1976 (WC Act) and the Waterways Conservation Regulations 1981 (WC Regulations). Princess Royal Harbour is part of the Albany Waterways management area, and is a declared waterway under the WC Act.
Relevant parts of the planning framework are discussed later in these reasons.

Proposed development

The submitted plans show a retaining wall approximately 1.35 metre high between the foreshore and the site(s). The purpose of the retaining wall is to replace an existing embankment which the applicant stated (in the written response to witness statements) is being consistently eroded: 'This undercutting (or erosion) has occurred, claiming approximately 2.5 metres of our land and is continuing'.
The plans also show three 4 metre wide boat ramps (one to each lot) with splayed edges at the foreshore. The plans show the retaining wall returning up the side of each boat ramp.
Attachment A to these reasons is a copy of the plan of the proposed development.
After the viewing and during the hearing, it became clear there was some uncertainty concerning the exact nature of the development proposal. Based on the submitted plans, the City had assumed that one reason for requiring development approval was that the extent of fill exceeded 600mm. This was a reasonable assumption because there is a significant difference between the proposed 1.35 metre high retaining wall and Mr Hopkinson's estimate that the height of the existing embankment was 400600mm.
As noted above, Mr Smith stated in his application that the fill would not exceed 600mm and implied the height of the retaining wall was the height of the existing embankment. For the purposes of the review, the Tribunal will proceed on the basis that the fill does not exceed 600mm and that the height of the retaining wall will approximate the height of the existing embankments and will be the height necessary for retaining the existing ground level at the rear of the subject sites. (If this review is successful, then an appropriate condition will be ordered.)
During the hearing it was accepted that the boat ramps to Lots 22 and 23 were shown in indicative positions only and the boat ramp to Lot 24 was new.
The Tribunal will proceed on the basis that the application under review is for one new boat ramp; a new retaining wall with the retaining wall returning down the sides of the new and existing boat ramps; and retrospective approval of the two existing boat ramps. The question of whether the existing boat ramps are part of the application and whether they require planning approval will be dealt with later in these reasons.

Council's decision

The Council assessed each of the three applications as a 'Development - retaining wall and boat launching ramp on Reserved Land and filling of land more than 600mm'.
Each application was refused for the following five reasons:
(1)As per Clause 2.2(c) of Town Planning Scheme No.3, the proposed development would be inconsistent with the ultimate purpose intended for the reserve, being for the creation of a Reserve for Recreation (foreshore reserve) between Princess Royal Harbour and private development that seeks to provide passive recreational opportunities for the wider community in addition to protecting and rehabilitating land adjacent to the harbour.
(2)The proposed retaining wall has the potential to cause environmental degradation through the interruption of the natural sedimentation process associated with the harbour and the resultant transference of erosion risks in the locality.
(3)The private boat launching ramp has the potential to interfere with the future public use of the foreshore reserve and will encourage the excavation of the sea bed to aid in boat launching as already witnessed to the north/east of the subject land (this is despite public boat launching facilities being found close by).
(4)The proposed retaining wall and boat launching ramp will have a detrimental impact on the visual amenity of the area, restrict future pedestrian access and compromise the future rehabilitation of the foreshore reserve.
(5)The development is not suitable when considered against Clause 5.4 of Town Planning Scheme No. 3, Matters to be Considered by Council, particularly considerations of (a), (g), (i), (l), (m), (n), (o) and (w).

The issues

The following four issues arise for determination in this review:
1.Whether the proposed development requires planning scheme consent;
2.Whether the proposal is consistent with the ultimate purpose of the reserve;
3.Whether the proposal has the potential to cause environmental damage; and
4.Whether the proposal will adversely affect the amenity of the locality.
The Tribunal will address each issue in turn.

Whether the proposed development requires planning scheme consent

The applicant questioned whether planning approval is required because fill will not exceed 600mm and two of the boat ramps are existing boat ramps.
The respondent argued in their statement of issues, facts and contentions (SIFC) that planning consent is required via two clauses of TPS 3.
In Pt II - Reserved Land, cl 2.2(b) requires that:
[e]xcept as otherwise provided in this Part, a person shall not carry out any development on land reserved under this Scheme, other than the erection of a boundary fence, without first applying for and obtaining the written approval of Council.
The second relevant clause referred to in the SIFC was cl 5.1.2.2(b) which states that:
Without limiting the generality of the expression 'development', for the purposes of the Scheme, the Council's planning consent is required for:
…
(b)the excavation or filling of or other earthworks on land which change the natural contours of the land by more than 600mm.
Also relevant is cl 5.1.1 which requires that:
Subject to clause 5.1.2, all development on land zoned or reserved under the scheme requires the prior approval of Council. A person must not commence or carry out any development without first having applied for and obtained the planning consent of the Council pursuant to the Scheme.
Clause 5.1.2 describes various exemptions from development approval including works associated with a single dwelling: subject to various qualifications.
However, it is the Tribunal's finding that the exemption for a single residence in cl 5.1.2 is not applicable to this review because when read together with cl 2.2(b), the exemption is limited to the part of the development associated with a single house that does not occur on reserved land.
The final relevant clause of TPS 3 is 1.6 - Interpretations where development is defined as follows:
Development - means the use and or development of any land and includes the erection, construction alteration or carrying out as the case may be of any building excavation, filling or other works on any land. Development includes the felling of timber on property.
The Tribunal considers that there is an error in the drafting and that there should be a comma between 'building' and 'excavation'. In other words, 'Development' includes 'building'.
The applicant stated that fill would not exceed 600mm and that the height of the retaining walls would only be what was required to protect the existing ground level. On that basis, it may initially appear from cl 5.1.2.2(b) that planning consent is not required because the 'excavation or filling (will not) change the natural contours of the land by more than 600mm'.
However, the correct interpretation requires that cl 5.1.2.2(b) must be read together with cl 2.2(b) and the definition of 'development', noting that cl 5.1.2.2 does not limit the generality of the expression 'development'. The Tribunal finds that cl 5.2.1.1 is the more general clause whereas cl 2.2(b) is more specific and applies higher standards to reserve land. In the case of reserved land, the standard is 'any development'. Development includes any excavation or fill.
Therefore, the difference between the 1.35 metre height on the drawings and the estimate of one of the respondent's own witnesses that the actual height is estimated at 400600mm has limited or no relevance. Similarly, the lack of surveyed levels is not relevant.
It is useful to consider the retaining walls with the associated returns and the boat ramps as separate issues.
The boat ramps, even excluding any building works such as paving materials and side retaining walls, require planning consent because they are development in the form of excavation into the embankment. Therefore, not only does the proposed new boat ramp require planning consent, but the existing two boat ramps comprising grassed slopes within the embankment require planning consent.
With reference to the proposed retaining wall, it is noted that cl 2.2(b) exempts a fence from the requirement for planning approval. It is the Tribunal's opinion that a retaining wall is not a fence. A retaining wall is a 'building' or 'other works'. This is consistent with Hamzah and City of Fremantle [2006] WASAT 360 where a retaining wall up to 400mm high was treated as separate from a fence.
Therefore, the Tribunal finds the proposed retaining wall (including the returns to the sides of the boat ramps) requires planning consent.
The Tribunal finds the boat ramps are excavation or other works on land and require planning consent.

Whether the proposal is consistent with the ultimate purpose of the reserve

Clause 2.2(c) of TPS 3, when referring to the approval of development on reserved land, requires:
In giving its approval the Council shall have regard to the ultimate purpose intended for the reserve …
In the respondent's SIFC, the ultimate purpose intended for the reserve was described as the creation of a foreshore reserve…
to provide passive recreational opportunities in addition to protecting and rehabilitating land adjacent to Princess Royal Harbour.
The Foreshore Management Plan is directly relevant to this review and has been based on extensive public consultation. The objectives include:
•To identify and protect environmentally sensitive areas;
•To protect the foreshore from inappropriate development and recreational activities;
…
•To develop a range of high quality, well designed recreation areas and facilities that blend with the foreshore landscape, have minimal environmental impact, and allow a variety of recreational experiences.

The review sites adjoin the proposed Rushy Point recreation node shown in Figure 5 of the Foreshore Management Plan. Reserve 32597 is to the immediate north of the review sites and Reserve 35427 is to the immediate south. A future picnic area and bike rack is proposed for the southern end of Reserve 32597, subject to consultation with nearby landowners. Figure 5 includes a note referring to the reserve on the three lots that are subject of this review stating 'Foreshore reserve provision and public access to be addressed through later conditions of subdivision'.
Mr Smith stated there is no intention to subdivide and that unless the reserved land is acquired through purchase, there is no realistic prospect of the reserved land on the subject sites being available for public use. He argued that there is adequate land north of Lot 22 on Reserve 32597 for recreational purposes.
He further argued that the sea wall is more attractive than revegetated banks, does not prevent future recreational use and is necessary to prevent the continued loss of the reserve land stating that between 2 and 2.5 metres of land has been lost over the last five years.
Mr Humphrey, a planner working for the respondent, argued in his witness statement that the proposal would prohibit the ultimate purpose intended for the reserve because 'a structure would be inherited which could provide both a maintenance/safety issue and provide an unwanted barrier between the foreshore and the reserve'. Mr Humphrey also expressed concern about the width of the boat ramps and the possibility of vehicle access onto the foreshore.
Mr Hopkinson appeared as a witness for the respondent. He has a science degree and is a senior natural resource management officer working for the Department of Water in the Albany office. He stated that the Water Authority is the agency authorised under the WC Act to control certain activities along the banks and foreshores of the Albany waterways.
Under the Act, the WC Regulations specify that certain acts are prohibited without approval or a licence. Regulation 9.1 provides that a person shall not construct a boat ramp or a retaining wall except in accordance with a licence issued under the WC Act.
Mr Hopkinson explained that Department of Water is guided by the Policy Manual of the Albany Waterways Management Authority (an agency authorised under the WC Act prior to the Water Authority) (AWMA Policy Manual) when assessing applications for licences under the WC Act.
The application was referred to the Department of Water and consideration was given to Chapter 5 of the AWMA Policy Manual s 5.3 'Retaining Walls for Waterways' where it states a retaining wall is:
considered a last resort for waterway bank protection, given their visual impact and the fact they often only transfer the erosion or sedimentation risk elsewhere. Retaining walls can also prove expensive to maintain. Revegetation of banks is considered a more desirable alternative than the provision of retaining walls.
Mr Smith argued that retaining walls were used and approved and referred to the Albany Woolstores, the Princess Royal Sailing Club, Princess Royal Drive, a boat launching facility near the town jetty and retaining walls for the new Albany entertainment facility. However, Mr Hopkinson was not concerned by precedent and argued that the examples displayed a sensible use of policy and where necessary retaining walls were used to protect reclaimed land and or to protect public infrastructure.
Mr Hopkinson argued that the Department of Water did not support the application for a licence to build a retaining wall for several reasons. In addition to the problems of maintenance and the transfer of erosion risks, the retaining wall was not considered necessary because there was no evidence of erosion and that the existing banks have been stabilised by the grass banks. Furthermore, if there was any evidence, the Department of Water prefers other options such as utilising native vegetation or 'soft' options such as geotextile fabric.
On balance, the Tribunal considers that a retaining wall will be inconsistent with the ultimate purpose intended for the reserve. The reserve immediately to the north has native vegetation on the embankment, as to a lesser degree does the reserve immediately to the south. Figure 5 of the Foreshore Management Plan includes a note that the embankment of the southern reserve is to be stabilised with endemic rushes.
The matter of the boat ramps is more problematic. Regulation 8 of the WC Regulations provides that a person shall not launch any boat from a trailer into any waters except from privatelyowned land abutting the waters. While this does not imply support for boat ramps, it does recognise launching of boats as a legitimate activity from privatelyowned land.
During the hearing, Mr Humphrey commented that launching boats would be consistent with public recreation. Mr Hopkinson, under crossexamination from Mr Smith, conceded that it was probably not possible to close the existing boat ramps but then stated the Water Authority would not approve new boat ramps. He observed that the existing boat ramps have stabilised over time but a new boat ramp would cause erosion of the embankment in the vicinity of the new boat ramp.
The Tribunal does not find that the proposed new boat ramp or the existing boat ramps are inconsistent with the ultimate purpose of the reserve. Any erosion is likely to be shortterm until stabilisation occurs consistent with the existing boat ramps. However, use of paving or other construction materials to construct the ramp would be inconsistent with the ultimate purpose.

Whether the proposal has the potential to cause environmental damage

Mr Smith argued that the proposed retaining wall will not cause environmental damage and that the purpose is to prevent environmental damage due to the continued loss of land on his and the adjoining properties through erosion. He referred to the various retaining walls built around Princess Royal Harbour (listed above) and commented:
What we fail to understand is how our proposed retaining wall has the potential to cause degradation through the interruption of the natural sedimentation process associated with the harbour, when this situation is not occurring with the above mentioned proposals.
He specifically referred to the nearby public boat launching ramp at the Princess Royal Sailing Club where the associated retaining walls have:
the same orientation and exposure as our proposal. Again there is no evidence of any environmental degradation through the interruption of the natural sedimentary process and resultant transference of erosion in the locality …
Mr Smith further argued that launching boats from the boat ramps would not cause damage to the sea bed and that channels would not be dug into the sea bed. He explained that once the boats were on the water they would be floated to the nearby existing deepwater channel near the end of Marine Terrace.
The respondent was able to rely on the evidence of Mr Hopkinson, who argued that there was no evidence of any existing environmental problems with the existing embankments.
There is some slight undercutting in evidence at the base of the eastern boundary interface with the harbour, a result of wave action on the vertical edge of the lot. The presence of the buffalo grass has minimised the impact of this wave action with the dense root system of the grass holding the soils of this bank together. The adjoining lot to the north is a crown reserve covered in native fringing vegetation and is an example of what the foreshore in private lots what have looked like pre clearing and development. In this area there is also undercutting of the bank. This undercutting is mostly considered minor.
The above arguments were consistent with the viewing which took place on the day of the hearing. During the hearing, Mr Hopkinson explained that the winter erosion was part of a natural cycle with erosion occurring in the winter months and deposition occurring in the summer months.
In a letter to the applicants, dated 19 February 2008, the Department of Water refused an application for a licence to build a retaining wall. In this letter, and consistent with the evidence of Mr Hopkinson, the Department stated:
The construction of a retaining wall does not conform to the natural landform of the foreshore area and can cause an array of environmental problems including the transfer of sedimentation and erosion risk elsewhere. The DoW have visited the subject site on a number of occasions and observed slight undercutting of the bank. This occurs in many parts of the Harbour and is a natural sediment movement process. These natural processes should not be altered by artificial structures … Such a structure provides no ecological benefits, of habitat or nutrient and debris accumulation.
The Tribunal found the evidence of Mr Hopkinson to be convincing and notes that the concern is not that environmental problems will occur but rather that there is a risk they may occur. The Tribunal also observes that there is a potential for damage (erosion) on adjoining lots (crown reserves) at each end of the retaining wall.
On the other hand, Mr Smith has referred to environmental damage that is occurring due to erosion and the stated consequence of loss of 22.5 metres of land during the last few years.
However, the lack of actual evidence of loss of land and the fact that the observed state of the existing embankments was consistent with the evidence of Mr Hopkinson was sufficient for the Tribunal to find that the potential of environmental damage from the retaining wall outweighs the potential benefit.
The Tribunal was not convinced that the existence of the boat ramps on private property would cause damage to the sea beds and accepts the argument that once the boats are at the water edge they can easily be floated to the nearby deepwater channel. This finding that the boat ramps are unlikely to have the potential to cause environmental damage is based on the assumptions of no vehicle access to the foreshore and that the ramps will be formed out of grasses where the root mat will help stabilise the ramps.
Before dealing with the final issue, the Tribunal notes that the AWMA Policy Manual and associated guidelines for retaining walls contemplate the approval of a retaining wall as a last resort where it is necessary to stabilise an embankment. Although Mr Smith argued that 22.5 metres of his land had been lost to erosion in the last few years there was no evidence to support the claim. Some of the evidence suggested that the rear boundary was located at high watermark rather than by fixed dimensions. If that is the case, it may be difficult to establish loss of land unless there was an earlier survey of the site(s). Nevertheless, the potential exists for the applicants to establish a real loss of land and that the bank is unstable over time. With hard evidence the applicants may be able to make a new application to be determined on merit but they should bear in mind that the guidelines clearly establish that a retaining wall is a last resort.

Whether the proposal will adversely affect the amenity of the locality

Mr Smith is an architect and the Tribunal accepts he is qualified to express professional opinions on the visual merit of the proposal. He argued:
From an aesthetic point of view, it is our opinion, that it [the retaining wall] will be an improvement on the unmanageable banks of buffalo grass (which we planted) and the other weeds and grasses that have invaded the banks … .
On the other hand, the respondent argued:
The construction of a retaining wall and boat ramps would be visually dominating when viewed from the Harbour in the context that the adjoining land is predominantly vegetated. A retaining wall adjacent to the Harbour, in a low density residential environment, would not be expected nor anticipated by Harbour users and would impact on their enjoyment of the Harbour.
It is clear from the respondent's submission that the issue of amenity is limited to visual amenity. The Tribunal does not doubt the ability of Mr Smith to ensure that the proposed retaining wall will have visual merit and that the use of natural materials could blend in with the natural environment. Further, the Tribunal accepts that the retaining wall may be more attractive than the existing buffalo grassed banks.
There was a lack of comprehensive argument on this matter and the Tribunal found the arguments that were presented were finely balanced. Ultimately, the Tribunal found in favour of the respondent for the following reasons. The straight line of the wall will be unsympathetic to the adjoining natural land forms, however, even if the wall was curved in an undulating form, the materials would remain unsympathetic in the context of the setting.
The Tribunal has previously found that amenity includes future expectations.
See, for example, Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74, where the President, Barker J, discussed (at [21][22]) the principles of amenity and found that assessment of amenity should not only include the opinions of experts but also the subjective views of residents and that the assessment should consider the present and likely future amenity.
The future expectations for the locality are expressed in the Foreshore Management Plan where it is clear that a retaining wall will be visually incompatible with the adjoining natural embankments.
The evidence on the visual amenity of the boat ramps was even more limited than the discussion on the retaining wall. The Tribunal found that the respondent failed to make a credible case for an adverse visual impact of the boat ramps.
Therefore, on balance, the Tribunal finds that the proposed retaining wall will adversely affect the existing and future visual amenity of the locality. The Tribunal also finds that the boat ramps will not adversely affect amenity.

Conclusion

The Tribunal has determined that planning consent is required for the retaining walls and the boat ramps, including retrospective planning approval for the two existing boat ramps.
The Tribunal found that the retaining wall was inconsistent with the ultimate purpose of the reserve, that it had the potential to have an adverse impact on the environment and that it would have an adverse impact on the visual amenity of the locality.
The Tribunal did not accept that the retaining wall was necessary. The Tribunal noted that the AWMA Policy Manual and associated guidelines for retaining walls contemplate the approval of a retaining wall as a last resort where it is necessary to stabilise an embankment. The potential remains for the applicant to establish that the embankment is not stable. The applicant claimed a loss of 22.5 metres of land over the last few years but did not support the claim with any testable evidence. The evidence available in this review did not establish that the bank was unstable but rather established that the applicants' embankment and the embankments or the adjoining reserves were stable.
Having regard to the part of the application dealing with boat ramps, the Tribunal did not find that the boats ramps formed out of grasses were inconsistent with the ultimate purpose of the reserve or that they would have an adverse impact on the visual amenity of the locality. In the case of the third or proposed boat ramp, there is potential for shortterm environmental damage while the ramp is formed and until the grasses are established. The shortterm concerns are not sufficient to establish that the boat ramps have the potential to cause environmental degradation.
It follows that the part of the application for review that relates to the retaining wall should be dismissed and the decision of the Council to refuse development approval should be affirmed. However, the part of the application for review that relates to the boat ramps should be allowed and the decision of the Council to refuse development approval for the boat ramps should be set aside.
As required by earlier Orders of the Tribunal, the respondent submitted draft conditions of approval. Two of the conditions related to the boat ramps and were not contested by the applicant. The conditions are consistent with the findings of the Tribunal and will form part of the orders.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.The decision of the respondent, made on 22 April 2008, to refuse development approval for a retaining wall and boat ramps at No 5 (Lot 23) and No 6 (Lot 24) Stubbs Road, Little Grove and No 32 (part lot 22) Marine Terrace, Little Grove is varied as follows:
(a)The decision to refuse the retaining wall is affirmed; and
(b)The decision to refuse the boat ramps is set aside and a decision is substituted that development approval of the boat ramps is granted subject to the following conditions:
(i)The two existing boat ramps are not to be relocated or extended.
(ii)The surface associated with the boat ramps shall only consist of in situ sand or grass or other material to the satisfaction of Council and the Department of Water which is not impervious and limits stormwater runoff into the harbour.
(iii)Vehicle access onto the public foreshore area adjacent to the Princess Royal Harbour, to accommodate the launching of boats, is not permitted.

Attachment A

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER

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Citations

Smith and City Of Albany [2008] WASAT 251

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

HAMZAH and CITY OF FREMANTLE [2006] WASAT 360

Sunbay Developments Pty Ltd and Shire Of Kalamunda [2006] WASAT 74