SOUTHERN FOREST DEVELOPMENTS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION

[2019] WASAT 125

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

CITATION:   SOUTHERN FOREST DEVELOPMENTS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 125

MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT

MR P DE VILLIERS, MEMBER

HEARD:   15, 16 AND 17 MAY 2018 AND 29 AND 30 OCTOBER 2019

DELIVERED          :   3 DECEMBER 2019

FILE NO/S:   DR 245 of 2017

BETWEEN:   SOUTHERN FOREST DEVELOPMENTS PTY LTD

I VOTE PTY LTD

Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Structure plan - Residential development proximate to Conservation Category Wetland - Contaminated site - Wetland buffer - Planning principle that wetlands that are to be protected require a minimum 50 metre buffer distance unless a site-specific buffer requirement has been determined - Existing structure plan (although 'subject to future planning') consistent with and reflects planning principle - Proposed reduction of wetland buffer from 50 metres to 30 metres - Whether proposed wetland buffer adequate and appropriate - Whether wetland buffer assessment has adequately determined a site-specific buffer requirement of 30 metres - Orderly and proper planning - Whether there is cogent reason or sound basis to depart from application of planning principle in the circumstances of this case and, if so, to what extent - Environmental offset - Ecological linkage - Fauna corridor - Fencing - Local Water Management Strategy - Consistency in decision-making - Whether, if buffer and ecological linkage fenced, there would be adequate Public Open Space - Whether unrestricted use Public Open Space adequate - Structure plan required to be modified to increase wetland buffer to 42 metres and provide 10 per cent of gross subdivisible area as Public Open Space and 80 per cent of Public Open Space as unrestricted use Public Open Space

Legislation:

City of Gosnells Local Planning Scheme No. 6
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 79(1), reg 79(2), Sch 2 (deemed provisions), cl 22(1), cl 22(1)(a), cl 22(1)(b), cl 22(1)(c), cl 25
State Administrative Tribunal Act 2004 (WA), s 31, s 31(3), s 73

Result:

Application for review allowed in part
Structure plan required to be modified and resubmitted to the Western Australian Planning Commission for approval

Summary of Tribunal's decision:

The applicants sought to amend an existing structure plan (which states, in relation to the subject site, that it is 'subject to future planning') by reducing the buffers to Conservation Category Wetlands from 50 metres to 30 metres, increasing the residential densities from R20 to R25, R30 and R40 and facilitating a new access point from Ranford Road.  The Western Australian Planning Commission refused that application.

The applicants sought review by the Tribunal.  Seven issues for determination were identified.  On the third day of the final hearing of the review application, the matter was adjourned, at the request of the applicants, and was referred for mediation.

Following mediation, the applicants provided the Commission with a revised structure plan amendment and supporting information. Pursuant to an invitation by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA), the Commission reconsidered its decision in the context of the revised application. The Commission affirmed its refusal on the sole basis that the proposed buffer to the wetlands is inadequate.

Although the matter therefore required the resumption of the final hearing, the issues for determination had been significantly reduced through mediation and the revised application.  At the resumed hearing, the following two principal issues were identified for determination by the Tribunal:

1. Whether the proposed buffers to the Conservation Category Wetlands are adequate and appropriate in the circumstances of this case.

2. Whether there would be adequate Public Open Space for residents of the local structure plan area if the proposed buffers to, and linkage between, the Conservation Category Wetlands is fenced on the development side of the buffers as recommended by the environmental expert witnesses.

In regard to issue 1, the Tribunal found that the Wetland Buffer Assessment presented in support of the proposed minimum 30 metre buffers has not adequately determined a site-specific buffer requirement of 30 metres.  However, the Tribunal also found that an ecological linkage, suggested by the environmental expert witnesses in their joint statement (and proposed by the applicants), between the two wetland areas, is an appropriate environmental offset in considering the adequacy and appropriateness of the proposed buffers on the subject site and that the fencing of buffers suggested by the expert witnesses (and proposed by the applicants) would also be of ecological benefit to the wetlands, by preventing dogs and controlling human access to the wetlands.  In this context, the Tribunal determined, in exercising discretion, that there is cogent reason and sound basis to depart from the application of a planning principle reflected in the Environmental Protection Authority's Guidance Statement 33: Environmental Guidance for Planning and Development that wetlands that are to be protected require a minimum 50 metre buffer distance unless a site-specific buffer requirement has been determined, although not to the extent sought by the applicants.  The Tribunal determined that the proposed buffers should be increased to 42 metres from the wetlands.

The determination of the issue in relation to wetland buffers impacted on the Public Open Space proposed for the site, because the fencing of the ecological linkage and buffers reduced the calculation of Public Open Space and the amount and proportion of unrestricted use Public Open Space.  The Tribunal found that there would not be adequate Public Open Space for the residents of the local structure plan area if the buffers and ecological linkage were fenced.  The Tribunal determined that at least 10 per cent of the gross subdivisible area of the site should be given up as Public Open Space and that at least 80 per cent of that area should be unrestricted use Public Open Space.  The Tribunal also determined that the additional Public Open Space should be provided within the increased wetland buffer area that the Tribunal required.

The Tribunal ordered the applicants to modify the proposed structure plan in accordance with a schedule of modifications and resubmit the modified structure plan to the Commission for approval.

Category:    B

Representation:

Counsel:

Applicants	:	Mr M C Hotchkin
Respondent	:	Mr J M Misso

Solicitors:

Applicants	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

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

Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR (WA) 311

Hanson Construction Materials and Town of Vincent [2008] WASAT 71

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196

Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59; (2019) 97 SR (WA) 270

TABLE OF Contents

Introduction

Site and Balannup Lake CCW

Proposed structure plan

Planning policies and principles in relation to wetland buffers

Issues for determination

Expert evidence

Contamination evidence

Engineering evidence

Planning evidence

Environmental evidence

Are the proposed buffers to the CCW adequate and appropriate in the circumstances of this case?

Does the Wetland Buffer Assessment adequately determine a site-specific buffer requirement of 30 metres?

Is there a cogent reason or sound basis to depart from the application of the planning principle that wetlands that are to be protected require a minimum 50 metre buffer distance, and, if so, to what extent?

Conclusion in relation to whether the proposed buffers to the CCW are adequate and appropriate in the circumstances of this case

Would there be adequate Public Open Space for residents of the local structure plan area if the proposed buffers to, and linkage between, the CCW is fenced on the development side of the buffers as recommended by the environmental expert witnesses?

Outcome of review

Orders

Attachment A - Schedule of modifications

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The site the subject of this review is Lot 1627 Ranford Road, Southern River (site).  The site falls within the area covered by the Southern River Precinct 2 Outline Development Plan - Phase 2 (ODP) which was endorsed by the Western Australian Planning Commission (Commission or respondent) in 2009.  The ODP map is reproduced below:[1]

   [1] Respondent's section 24 bundle dated 25 June 2019 volume 2 (Exhibit 29.2) tab 13, page 921.  The ODP map is referred to in these reasons as the 'existing structure plan map'.

2. The ODP map shows the majority of the site as 'Residential R20' adjoining an approximately 50-metre wide reserve for 'Local Open Space' at the north-western and south-western boundaries and an approximately 40-metre wide reserve for 'Local Open Space' at the south-eastern boundary of the site, which separate the 'Residential R20' portion of the site from the Balannup Lake Conservation Category Wetland (CCW) to both the north-west (generally on Lot 8008 and Lot 1002) and south-east (generally on Lot 1628) of the site.  As can be seen on the ODP map, part of the CCW generally located on Lot 1628 extends into the southern portion of the site, which is reserved for 'Parks and Recreation' under the Metropolitan Region Scheme (MRS), and a small part of the CCW generally located on Lot 8008 extends into the north-western portion of the site, part of which is also reserved for 'Parks and Recreation' under the MRS.  By hatching superimposed on the site, the ODP map also indicates that the site is 'subject to future planning'.

3. Under reg 79(1) of the Planning and Development                  (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs), the ODP 'continues in force as if it were a planning instrument of the same type made under the [Planning and Development Act 2005 (WA)] in accordance with these regulations'. Under reg 79(2) of the LPS Regs, the ODP is taken to be a 'structure plan'. In these reasons, we therefore refer to the ODP as the 'existing structure plan'.[2]

   [2] The legislative framework in relation to structure plans was recently surveyed by the Tribunal in Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59; (2019) 97 SR (WA) 270 at [6]-[26].

4. In 2017, Southern Forest Developments Pty Ltd and I Vote Pty Ltd (applicants) sought to amend the existing structure plan in relation to the site by reducing the 'buffers' to the Balannup Lake CCW (that is, the area identified as reserve for 'Local Open Space' on the existing structure plan map) from 50 metres to 30 metres, increasing the residential densities on the site from R20 to R25, R30 and R40, and providing a new access point from Ranford Road.[3]  In these reasons, we refer to the applicants' originally proposed amendment to the existing structure plan as the 'originally proposed structure plan'.  The originally proposed structure plan map is reproduced below:[4]

   [3] Respondent's substituted statement of issues, facts and contentions dated 25 June 2019 (Exhibit 25) [17] and Applicants' substituted statement of issues, facts and contentions dated 18 July 2019 (Exhibit 26) [6].

   [4] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 2, Attachment 2, page 12.

5. On 18 July 2017, the Commission refused to approve the originally proposed structure plan for the following reasons:[5]

   [5] Respondent's section 24 bundle dated 25 June 2019 volume 2 (Exhibit 29.2) tab 35, pages 1484­1485.

   1.The proposed 30 metre wetland buffer and proposed management strategy as detailed in the Wetland and Wetland Buffer Management Strategy (Ecologia Environment, 2016) is not supported as it is inconsistent with the recommended buffer distance (50 metres) referenced in the following environmental guidelines:

   •Environmental Guidance for Planning and Development (GS33) (Environmental Protection Authority, 2008)

   •A guide to managing and restoring wetlands in Western Australia (Department of Environment and Conservation, 2012); and

   •Guideline for the Determination of Wetland Buffer Requirement (Western Australian Planning Commission).

   There is insufficient information to justify a substantial reduction in the wetland buffer given its potential to alter the hydrology of the wetlands and compromise its values;

   2.The proposed access onto Ranford Road would result in movement conflict with access onto Hatch Court and is inconsistent with the Ranford Road Access Management Strategy.

   3.The proposal requires clearing of native vegetation within adjoining Lot 8008 (Bush Forever Site 413) to accommodate a slip lane/deceleration lane on Ranford Road.  The proposed clearing is not supported.

   4.The submitted Bushfire Management Plan cannot be validated as being fully in compliant [sic] with the objectives of State Planning Policy 3.7 - Planning in Bushfire Prone Areas and the associated Guidelines.

   5.The submitted Local Water Management Strategy has not been endorsed by the Department of Water and the local government.

   6.The site is not considered a suitable location for the level of density proposed as it is currently not serviced by a high frequency bus route, not within walkable distance to an activity centre or community facilities.  An ad hoc application of density could set an undesirable precedent for similar development within the structure plan area, leading to significant and unanticipated cumulative density increases in the area, and an inequitable distribution of density within the larger Southern River locality.

6. On 1 August 2017, the applicants applied to the Tribunal seeking a review of the respondent's decision under cl 25 of the deemed provisions in local planning schemes set out in Sch 2 of the LPS Regs (deemed provisions).

7. The final hearing of the review application by the Tribunal commenced on 15 May 2018 and included a view of the site, but was adjourned, at the request of the applicants, part-heard, on 17 May 2018.  The proceeding was then referred for mediation before a member of the Tribunal.

8. Following mediation, on 11 January 2019, the applicants provided the respondent with a revised structure plan amendment and supporting information.  In these reasons, we refer to the revised structure plan amendment as the 'proposed structure plan'.  The proposed structure plan map is reproduced below:[6]

   [6] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 2, Attachment 3, page 13.

9. On 30 April 2019, pursuant to an invitation by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the respondent reconsidered its decision the subject of the proceedings and resolved to refuse the proposed structure plan for the following reason:[7]

   The proposed 30 metre buffer to the Balannup Lake Conservation Category Wetland (CCW) is inconsistent with:

   a.the recommended buffer distance for conservation category wetlands in EPA Guidance Statement No. 33;

   b.the intent of clause 5.3 and Schedule 3 of SPP 2.9 - Water Resources, which is to protect, manage, conserve and enhance the environmental functions and values and ensure adequate buffering of conservation category wetlands, guided by relevant policies of the Environmental Protection Authority (EPA), the Department of Biodiversity, Conservation and Attractions and the WAPC; and

   c.the draft WAPC Guideline for Determination of Wetland Buffer Requirements, as it is insufficient in protecting the Balannup Lake CCW from residential encroachment.

   [7] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 1, page 1.

10. Under s 31(3) of the SAT Act, the decision made by the Commission on 30 April 2019 is now the reviewable decision in these proceedings.

Site and Balannup Lake CCW

1. The site has an area of approximately 11.38 hectares and contains a single dwelling, associated outbuildings, a constructed dam and fenced paddocks used for horse agistment.  An existing unsealed driveway adjacent to the north-western boundary of the site provides access to Ranford Road.  Following the recent completion of the residential subdivision known as 'Bletchley Park' to the north-east of the site, the site also has road frontage on its north-eastern boundary to both Panther Elbow and Stargaze Boulevard.  A large part of the site is contaminated due to uncontrolled fill which was apparently dumped on the site in the 1970s.

2. In 2008, MRS Amendment No. 1113/33A proposed the transfer of the then 'Rural'­zoned land bounded by Balfour Street, Furley Road, Southern River Road and Ranford Road, which includes the site, to 'Urban' zone and 'Parks and Recreation' reservation under the MRS.      In its submission on the proposed amendment, the Environmental Protection Authority (EPA) identified that the future urban development of the land may have potential impacts on CCWs and advised that appropriate buffers, based on the values of each site, could be determined at future stages of the planning process.  MRS Amendment No. 1113/33A was gazetted in May 2008.

3. The majority of the site is zoned 'Urban' under the MRS, while a portion in the southern section and a narrow strip in the north­western corner is reserved for 'Parks and Recreation' under the MRS.[8]  The part of the site which is zoned 'Urban' under the MRS is zoned 'Residential' under the City of Gosnells Local Planning Scheme No. 6.[9]

   [8] Respondent's section 24 bundle dated 25 June 2019 volume 2 (Exhibit 29.2) tab 23, page 1085.

   [9] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 2, page 15.

4. The Balannup Lake CCW and Bush Forever Site 413 covers approximately 2.15 hectares of the site, in its north-western and southern parts, and adjoins its north-western and south-eastern boundaries.

5. Balannup Lake is identified as a CCW under the Department of Biodiversity, Conservation and Attractions (DBCA) wetland classification system.  On the Geomorphic Wetlands Swan Coastal Plain dataset, managed by DBCA, the parts of the wetlands to the north­west and south-east of the site have different Unique Feature Identifier (UFI) numbers, namely UFI 14882 (to the north-west of the site) and UFI 15509 (to the south-east of the site).  Balannup Lake CCW was originally part of a larger wetland that extended to the north and south of Ranford Road and included the site.  It has been fragmented by development over time.  Balannup Lake CCW now falls within Bush Forever Site 413.

6. Balannup Lake is also mapped as a Nationally Important Wetland in the Australian Government Directory of Important Wetlands and is identified as meeting the following criteria for inclusion in the Directory:[10]

   1.It is a good example of a wetland type occurring within a biogeographic region in Australia;

   2.It is a wetland which plays an important ecological or hydrological role in the natural functioning of a major wetland system/complex;

   3.It is a wetland which is important as the habitat for animal taxa at a vulnerable stage in their lifecycles, or provides a refuge when adverse conditions such as drought prevail;

   …

   6.The wetland is of outstanding historical or cultural significance.

   [10] Respondent's substituted statement of issues, facts and contentions dated 25 June 2019 (Exhibit 25) [8] and Applicants' substituted statement of issues, facts and contentions dated 18 July 2019 (Exhibit 26) [4].

7. In a submission to the then State Planning Commission             (the predecessor of the respondent) in relation to proposed MRS Amendment No. 927/33 in November 1993, the EPA identified Balannup Lake as comprising wetlands which required protection by way of 'Parks and Recreation' reservation under the MRS.                  The Balannup Lake CCW was subsequently reserved for 'Parks and Recreation' under the MRS.

Proposed structure plan

1. The proposed structure plan seeks to amend the existing structure plan as follows:[11]

   (a)reduce the CCW 'buffer' on the site from 50 metres (equivalent to 4.39 hectares) to 30 metres (equivalent to 2.59 hectares);

   (b)increase residential density from R20 to R30 with a small pocket of R40; and

   (c)provide Public Open Space comprising 14.7 per cent of the gross subdivisible area of the site (shown as 'Public Open Space & Drainage').[12]

   [11] Respondent's substituted statement of issues, facts and contentions dated 25 June 2019 (Exhibit 25) [25] and Applicants' substituted statement of issues, facts and contentions dated 18 July 2019 (Exhibit 26) [6].

   [12] As discussed in relation to issue 2 below, in consequence of the applicants' proposal for a 50 metre wide fenced ecological linkage adjoining the Ranford Road frontage and fencing of the buffer areas on the development side, the Public Open Space on the site is reduced from 14.7 per cent of the gross subdivisible area to 8.85 per cent of the gross subdivisible area.

2. The subdivision concept plan submitted by the applicants with the proposed structure plan envisages a total lot yield of 110 single residential lots, comprising 103 lots at R30 and seven lots at R40.[13]

   [13] Respondent's substituted statement of issues, facts and contentions dated 25 June 2019 (Exhibit 25) [26] and Applicants' substituted statement of issues, facts and contentions dated 18 July 2019 (Exhibit 26) [6].

3. In addition, in the proposed structure plan, the applicants seek minor modifications to the mapped wetland boundary as identified in the Geomorphic Wetlands Swan Coastal Plain dataset.[14]

   [14] Respondent's substituted statement of issues, facts and contentions dated 25 June 2019 (Exhibit 25) [27] and Applicants' substituted statement of issues, facts and contentions dated 18 July 2019 (Exhibit 26) [6].

4. Unlike the originally proposed structure plan, the proposed structure plan does not involve vehicular access from Ranford Road.  However, the proposed structure plan still involves pedestrian access between the site and Ranford Road.

Planning policies and principles in relation to wetland buffers

1. As indicated earlier, the existing structure plan map identifies the site as 'subject to future planning'.  However, as also indicated earlier, the existing structure plan map shows a reserve for 'Local Open Space' at the north-western, south-western and south-eastern boundaries of the site, separating the 'Residential R20' part of the site from the Balannup Lake CCW.  The reserve shown on the existing structure plan map is approximately 50 metres wide adjoining the north-western and south­western boundaries of the site and approximately 40 metres wide adjoining the south-eastern boundary of the site (that is, the common boundary with Lot 1628).  Although the existing structure plan map does not expressly identify the reserve on the site as a 'buffer', in the planning report to the Ordinary Council Meeting of the City of Gosnells on 9 September 2008, at which the Council resolved that the then draft (and now existing) structure plan was appropriate for advertising, the reporting planning officer referred to the proposed reserve on the site as 'protective buffers of 50 [metres] in width' for the protection of the Balannup Lake CCW.[15]  The reporting planning officer also said the following in relation to the site:[16]

   Lot 1627

   Lot 1627 [the site] has been identified as being subject to further planning.  The development potential of this land is constrained by identified environmental assets such as Conservation Category Wetlands and associated protective buffers.  The landowner has advised that they intend to further investigate the environmental characteristics of the land and prepare a planning framework for their land at a later date.  Designating Lot 1627 as subject to future planning will ensure the planning and environmental requirements specific to that lot, will be addressed at a later date.

   [15] Respondent's section 24 bundle dated 25 June 2019 volume 2 (Exhibit 29.2) tab 20, page 1063.

   [16] Respondent's section 24 bundle dated 25 June 2019 volume 2 (Exhibit 29.2) tab 20, page 1064.

2. Furthermore, the parties agree in the statements of issues, facts and contentions that the area shown as reserve for 'Local Open Space' on the existing structure plan map is CCW 'buffer' and that the applicants propose, in the application the subject of this review, to reduce the CCW 'buffer' on the site from 50 metres to 30 metres.[17]

   [17] Respondent's substituted statement of issues, facts and contentions dated 25 June 2019 (Exhibit 25) [25] and Applicants' substituted statement of issues, facts and contentions dated 18 July 2019 (Exhibit 26) [6].

3. State Planning Policy 2 - Environment and Natural Resources (SPP 2) states in cl 5.2(iv) that planning strategies, schemes and decisions should:[18]

   Ensure the provision of adequate setbacks between development and the foreshores of wetlands, waterways, estuaries and the coast, in order to maintain or improve the ecological and physical function of water bodies.  Such setbacks will aim to maintain the natural drainage function, protect wildlife habitats and landscape values, lessen erosion of banks and verges, and facilitate filtration of sediment and waste associated with surface run-off from adjacent land uses, which may include retention or replacement of riparian vegetation.

   [18] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 5, page 293.

4. Similarly, State Planning Policy 2.9 - Water Resources (SPP 2.9) states in cl 5.3(v) as follows:[19]

   Ensure adequate and appropriate buffering of wetlands, waterways and estuaries to maintain or enhance the environmental attributes, functions and values of the water resource and minimise the impact of nearby land uses, both existing and future. …

   [19] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 7, page 387.

5. In December 2005, the Commission published draft Guidelines for the Determination of Wetland Buffer Requirements for public comment (WAPC Guidelines).  Although this document has remained in 'draft' for 14 years, it is agreed by the environmental expert witnesses, and common ground between the parties, that the WAPC Guidelines provides the applicable methodology for the determination of a site­specific wetland buffer requirement.

6. In May 2008, the EPA issued Guidance Statement No. 33: Environmental Guidance for Planning and Development (GS 33).  GS 33 includes the following in Attachment B4-3 ('Determining the location of wetlands, wetland boundaries and buffers'):[20]

   [20] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 8, pages 533-534 (emphasis added).

   IDENTIFYING WETLAND BUFFERS

   The buffer adjoining a wetland helps to maintain the ecological processes and functions associated with the wetland, and aims to protect the wetland from potential adverse impacts.  A buffer can also help to protect the community from potential nuisance insects, for example, midges.  To maintain wetland values, it is important to determine, protect and manage an adequate buffer.  The DEC [former Department of Environment and Conservation, now DBCA] measures the buffer from the geomorphic wetland boundary (see 'Identifying Wetland Boundaries' above).

   Wetlands that are to be protected require a minimum 50 metre buffer distance.  A range of generic buffer distances is provided in Water and Rivers Commission Position Statement: Wetlands (WRC 2001).  Alternatively a site-specific buffer requirement may be determined.

   The extent of the buffer around a particular wetland should be based on an assessment of:

   •the wetland's values

   •the activities, land uses or development near the wetland, existing and proposed

   •the threats posed by the adjacent activities, land uses or development.

   Studies should typically involve site investigations and identify:

   •the wetland, and key wetland attributes, for example, vegetation and flora, fauna, hydrology, soils, topography, landscape features, functions and values

   •the wetland management category and management objectives

   •threatening processes near the wetland (existing and potential), for example, changes to the water regime, weeds, inappropriate recreational use

   •the separation and management required to meet management objectives, and the extent to which these can be achieved

   •the proposed buffer and key management measures.

   A methodology is being prepared for the Wetlands Coordinating Committee and a draft has been released for public comment [WAPC Guidelines].  When finalised and endorsed this methodology will form the basis for determining wetland buffers.

   It is recommended that people working on a planning or development project that requires the determination of wetland buffers check the preferred methodology with the relevant decision­making authorities and government agencies likely to be providing technical advice (for example, DEC).  If a scheme or proposal needs referral to the Environmental Protection Authority (EPA), the EPA Service Unit can provide advice.

7. In our view, GS 33 is relevantly, in effect, a (non-statutory) planning policy in relation to the determination of adequate and appropriate wetland buffers on development sites.  Although GS 33 was issued by the EPA and does not appear to have been formally adopted as a planning policy by the Commission, it is clear, on the evidence, that the Commission has had regard to GS 33 as though it were a planning policy in relation to the determination of adequate and appropriate wetland buffers.  The applicants and Mr Darren Walsh, who is the environmental expert witness the applicants called to give evidence, also approached GS 33 in this proceeding as though it were, in effect, a planning policy in relation to the determination of adequate and appropriate wetland buffers.

8. The key relevant planning principle for the purposes of this review that finds expression in GS 33 is that '[w]etlands that are to be protected require a minimum 50 metre buffer distance … [unless] a site-specific buffer requirement [has been] determined'.  We note that the buffers shown on the existing structure plan map are consistent with and reflect this planning principle.  In this regard, although the buffer shown as reserve for 'Local Open Space' on the existing structure plan map on the south-eastern boundary of the site (that is, the common boundary with Lot 1628) is only about 40 metres wide, the mapped boundary of the CCW does not abut the boundary of the site in that location, but rather is located about 10 metres to the south-east of the common boundary with the site.  Thus, a 40 metre buffer on the site along the common boundary with Lot 1628 results in a 50 metre buffer distance separating the 'Residential R20' part of the site from the Balannup Lake CCW.

9. As the Tribunal said in Bestry Property Group Pty Ltd and         Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR (WA) 311 at [99]:[21]

   In the exercise of planning discretion, the Tribunal is guided by the planning principles that find expression in the policies forming the planning framework, but will depart from the application of those planning principles where there is a cogent reason to do so in the circumstances of the case.  These principles were stated by Justice Barker, sitting in the Supreme Court of Western Australia, in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] as follows:

   In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a "policy" and which is stated to be relevant to subdivision applications.  In such cases, the document is not a "policy" given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it.  If the Commission has adopted such a "policy", and it is relevant to the application, the policy will be expected to guide the exercise of discretion.  However, the existence of such a "policy" is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it.  Notwithstanding this understanding, the relevant consideration in many applications will by [sic] why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application.  Good public administration demands no less an approach.

   [21] See also Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37] (Simmonds J).

10. In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226, Pritchard J made the following related observations in relation to 'orderly and proper planning' at [179]­[181]:[22]

    179The starting point for determining the meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act is the ordinary and natural meaning of those words.  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.

    180The 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'.

    181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision.  The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.  While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one.  If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle.  A broad range of considerations may be relevant in that context.

Issues for determination

[22] Citations omitted.

1. During the initial part of the final hearing, which took place in May 2018, there were seven issues identified for determination in the proceedings, including whether the proposed reduced wetland buffers are appropriate; whether the then proposed vehicular access from Ranford Road is appropriate; whether the proposed residential densities are appropriate; whether the then proposed use of the site for aged housing is appropriate; and whether the proposed bushfire mitigation measures are appropriate.  As indicated earlier, the final hearing was adjourned, at the applicants' request, and the matter was referred for mediation.  As a result of mediation and the revised proposed structure plan, all but one of the seven issues, namely the issue concerning the appropriateness of the proposed reduced wetland buffers, have been resolved.  Although the Commission refused to approve the proposed structure plan on 30 April 2019, it did so solely because of the buffer issue.  Subject to redesign of the structure plan area to accommodate increased buffers and certain miscellaneous proposed modifications,[23] the Commission accepts that the proposed structure plan merits approval, including in relation to proposed residential densities.

   [23] See [176] below.

2. As in their respective revised statements of issues, facts and contentions, the parties had framed the issue concerning the appropriateness of the proposed wetland buffers somewhat differently, and as they had not addressed the Public Open Space implications of matters arising out of the joint statement of the environmental expert witnesses, at the commencement of the further hearing on 29 October 2019, the Tribunal suggested the following two issues to the parties for their consideration as the principal issues now arising for determination in this review:[24]

   1.Whether the proposed buffers to the [CCW] are adequate and appropriate in the circumstances of this case.

   2.Whether there would be adequate Public Open Space for residents of the local structure plan area if the proposed buffers to, and linkage between, the [CCW] is fenced on the development side of the buffers as recommended by the environmental expert witnesses.

   [24] Issues for determination (Exhibit 40).

3. The parties agreed that the issues suggested by the Tribunal are the principal issues for determination,[25] and the matter proceeded on this basis.

   [25] ts 163-164, 30 October 2019.

4. We will address the issues in turn after referring to the evidence of the contamination, engineering, planning and environmental expert witnesses.

Expert evidence

Contamination evidence

1. Evidence in relation to the contamination of the site and the potential impacts on the environment was provided for the respondent by Ms Rowena Beaton, an Environmental Officer with the Department of Water and Environmental Regulation (DWER).  Ms Beaton was not required for cross-examination and we accept her evidence.

2. Ms Beaton said that the site was subject to uncontrolled filling from approximately 1974 to 1979 with materials of unknown origin containing construction and demolition waste.  The uncontrolled fill is estimated to be 30,000 to 35,000 cubic metres in volume and covers approximately 4.5 hectares in the central and south-western portions of the site.  

3. Ms Beaton gave evidence that investigations have confirmed that the uncontrolled fill includes fragments of asbestos-containing material (ACM) and concentrations in multiple test pits failed the relevant criterion for ACM in soil where sensitive land uses are proposed.  The site was classified as 'contaminated - remediation required' on 21 August 2013, based on the presence of asbestos contamination, and while it was reclassified on 26 May 2015, its status remains unchanged. 

4. Soil and groundwater investigations have been carried out for other contaminants, including metals, hydrocarbons, organochlorine pesticides, nutrients and major ions.  The soil results were below the assessment criteria with the exception of some metals (zinc, lead and copper) and the pesticide dieldrin.  The lead and copper exceedances were not found to be significant.

5. Ms Beaton also gave evidence that soil leachate testing found that zinc (but not dieldrin) was able to leach from the uncontrolled fill soils under acidic conditions, but the risk posed by zinc to groundwater (and therefore risk to the Balannup Lake CCW) is likely to be low.

6. Nutrients and metals (aluminium, iron, manganese and zinc) were detected in groundwater at concentrations exceeding the applicable assessment criteria, but were similar to regional ambient conditions up­hydraulic gradient of the site.  Pyrene (a polycyclic aromatic hydrocarbon) was also detected.  Ms Beaton considers that it is likely that pyrene has leached from the uncontrolled fill material into the groundwater.

1. In terms of the potential impacts of contamination on the environment and wetlands, Ms Beaton said that asbestos is not known to have an adverse impact, and site inspections have not observed any adverse impacts to vegetation, such as scalding or stunted growth, which can sometimes be indicators of acidification or contamination.

2. Ms Beaton concludes that the environmental risks from the uncontrolled fill, other than from asbestos, as to which she defers to the Department of Health (DoH), do not justify the removal of all fill from the site.

3. In relation to the extent of asbestos contamination on the site and its potential impacts, Ms Pierina Otness, a senior toxicologist with DoH, provided expert evidence for the respondent.  Ms Otness was not required for cross-examination and we accept her evidence.

4. Ms Otness notes that DoH's preference is for minimal disturbance of ACM.  DoH accepted the findings of a Voluntary Auditor's Report submitted by the applicants of surface asbestos cement fragments, mainly in the south-western portion of the site, and uncontrolled fill estimated to be between 0.6 and 1.4 metres deep, although generally less than 1 metre deep, across the site.  DoH also accepted the Auditor's conclusion that the residential criteria for asbestos concentration is likely to be exceeded across the filled areas, with the consequence that the site can be considered contaminated and remediation is required for residential development.

5. Ms Otness gave evidence that ACM can be assumed to be present in the areas of uncontrolled fill and there is evidence of surface contamination.  However, she considers that the risk to public health from undisturbed bonded asbestos cement material is 'extremely low' and the remediation option for the site allows for the removal of geotechnically unsuitable fill and for the provision of a clean fill cover over the reburied asbestos waste contamination within the area identified for development.[26]

Engineering evidence

[26] Witness statement of Pierina Rita Otness dated 9 August 2019 (Exhibit 33) [32].

1. The applicants called Mr Toby Vangelovski, a civil engineer and the author of the Local Water Management Strategy (LWMS) submitted by the applicants in support of the proposed structure plan, to give evidence.  Mr Vangelovski's evidence was not seriously challenged and was not contradicted, and we accept it.

2. Mr Vangelovski gave evidence that '[p]rotecting the [CCW] was considered as the primary design objective' when developing the LWMS and 'the proposed structure plan has been prepared to ensure these strategies can be implemented'.[27]  He also said that the proposed structure plan 'will not result in unacceptable impacts on the hydrology of the adjoining wetlands with a 30 [metre] buffer as designed'.[28]  This appears to be principally because earthwork design will ensure that 'post-development groundwater flow paths should be similar to the predevelopment conditions'.[29]

   [27] Witness statement of Toby Michael Vangelovski dated 12 April 2018 (Exhibit 8) [11].

   [28] Witness statement of Toby Michael Vangelovski dated 12 April 2018 (Exhibit 8) [28].

   [29] Witness statement of Toby Michael Vangelovski dated 12 April 2018 (Exhibit 8) [17].

3. Mr Vangelovski also referred to water level data suggesting that there has been a historical decline in wetland winter water levels in the Balannup Lake CCW and said that development of the site provides 'an opportunity to sustain or improve the current wetland water levels'.[30]  Mr Vangelovski gave the following explanation for this opinion:[31]

   Urbanisation of the site will reduce the predevelopment evapotranspiration rates (due to construction of hardstand areas) and compaction will reduce the voids ratio and permeability of the soils.  When combined, this will result in an increase in the groundwater levels centrally within the site.  The extent of the groundwater rise will be controlled by the existing groundwater flow paths towards the wetlands and via subsoil drainage as shown in Diagram 6.2.

   In addition to the above, backfilling of the existing dam/irrigation lake as part of the development will locally increase the groundwater levels.  The expected post­development groundwater level as a result of development is shown in Figure 6.1.  Given the decline in the wetland water levels over the past 20 years, the net increase in water within the system as a result of development will improve the wetland hydrology.

   [30] Witness statement of Toby Michael Vangelovski dated 12 April 2018 (Exhibit 8) [15].

   [31] Witness statement of Toby Michael Vangelovski dated 12 April 2018 (Exhibit 8) [19]-[20].

4. Mr Vangelovski estimates that 'approximately 8,000 [cubic metres] of additional water will be available in the system as a result of the reduction in evapotranspiration', allowing an increase in the base water level of the Balannup Lake CCW.[32]

Planning evidence

[32] Witness statement of Toby Michael Vangelovski dated 12 April 2018 (Exhibit 8) [22].

1. Mr David Maiorana provided expert planning evidence for the applicant.  Mr Maiorana considers that the 'community', 'environment' and 'governance' principles set out in State Planning Policy 1 - State Planning Framework (SPP 1) are of particular relevance to the current review, given that the proposed structure plan will provide for residential subdivision 'where there is an interface with environmental features' (Balannup Lake CCW and Bush Forever Site 413).[33]  In regard to the community principle (which he quotes at [50] of his substituted witness statement), Mr Maiorana considers that the proposed structure plan satisfies the principle by better providing for future population growth and greater diversity of housing choice, with convenient access to developed open space.[34]  In regard to the environment principle (which he quotes at [53] of his substituted witness statement), Mr Maiorana considers that the proposed structure plan appropriately satisfies the principle, in particular by the provision of 'the significant and sustainable long-term ecological linkage between the two wetland areas'.[35]  In regard to the governance principle (which he quotes at [56] of his substituted witness statement), it is Mr Maiorana's opinion that the proposal satisfies the principle, as the proposal 'seeks the application of discretion to vary the generic wetland buffer from 50 [metres], as recommended by the [EPA] publication [GS 33][,] to 30 [metres] minimum, using the alternative approach to determining the wetland buffer based on site specific[-]assessment'.[36]

   [33] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [48].

   [34] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [51]-[52].

   [35] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [55].

   [36] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [57].

2. In addressing SPP 2 (the objectives of which he sets out at [61] of his substituted witness statement), Mr Maiorana considers, relying on the expert environmental evidence of Mr Walsh, that the proposed structure plan '[balances] conflicting needs as part of the planning process' and expresses the opinion that 'an assessment of a wetland buffer width should … only form a part of an integrated process and should not predominate over all other considerations'.[37]  However, we note that it is common ground that the primary issue in dispute between the parties, and hence required to be determined by the Tribunal, is whether the proposed buffers to the CCW are adequate and appropriate in the circumstances of the case.  All other issues, including in relation to proposed residential densities, have been resolved between the parties.  Moreover, the parties agree that, unless the Tribunal is satisfied that the minimum 30 metre buffers proposed by the applicants are adequate and appropriate in the circumstances of this case, the outcome of the determination of the issue should be a requirement by the Tribunal for the applicants to modify the proposed structure plan to show a 50 metre buffer or a lesser buffer considered to be adequate and appropriate by the Tribunal (under cl 22(1)(b) of the deemed provisions), rather than refusal to approve the proposed structure plan (under cl 22(1)(c) of the deemed provisions).

   [37] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [62] (original emphasis).

3. In addressing water resources in the context of SPP 2.9,               Mr Maiorana expresses the opinion that, given the proposed structure plan has been informed by extensive hydrological and engineering investigation and environmental assessment, the proposal is able to satisfy the objectives of SPP 2.9 (which he sets out at [66] of his revised witness statement).

4. In regard to State Planning Policy 2.8 - Bushland Policy for the Perth Metropolitan Region (SPP 2.8) (the objectives of which he quotes at [70] of his revised witness statement), Mr Maiorana expresses the opinion that, given the proposed structure plan provides for the retention of both Bush Forever areas in open space reservations, it complies with the objectives of SPP 2.8.[38]

   [38] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [71].

5. Mr Maiorana notes that a key objective of State Planning Policy 3 - Urban Growth Settlement (SPP 3) is to 'manage the growth and development of urban areas in response to the social and economic needs of the community, whilst recognising relevant environmental constraints'.[39]  He considers that refusing the proposed structure plan on the basis of a single issue, namely the adequacy of the proposed buffers to the wetlands:[40]

   … does not represent a balanced consideration of all relevant planning matters particularly where the criteria justifying a reduced buffer (from 50 [metres] to 30 [metres]) have been met through rigorous environmental assessment.  In my opinion, the Revised Buffer Study undertaken on behalf of the [applicants] provides sufficient justification to apply a 30 [metre] wetland buffer.

   [39] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [73].

   [40] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [75].

6. It is correct that the Commission refused to approve the proposed structure plan on 30 April 2019 on the basis of the single issue as to the adequacy of the proposed wetland buffers. However, as both parties recognised during the further hearing of the review on 29 and 30 October 2019, irrespective of the Tribunal's determination of the two principal issues, the outcome of this review will not be approval of the proposal structure plan (under cl 22(1)(a) of the deemed provisions) or refusal of the proposed structure plan (under cl 22(1)(c) of the deemed provisions), but rather to require the applicants to modify the proposed structure plan and resubmit the modified structure plan to the Commission for approval (under cl 22(1)(b) of the deemed provisions). Indeed, quite apart from modifications to the structure plan which may be imposed in consequence of the determination of the two issues set out at [33] above, the parties agree that the applicants should be required to modify the proposed structure plan in certain other respects.[41]

   [41] See [176]-[186] below.

7. The 'Revised Buffer Study' referred to by Mr Maiorana in his evidence set out at [55] above, and relied on by him generally in his evidence as establishing that a 30 metre buffer on the site to the Balannup Lake CCW is adequate and appropriate, is the document entitled 'Lot 1627 Ranford Road, Southern River Wetland Buffer Assessment (Revised)' dated November 2018 by Mr Walsh, who is an environmental scientist and the Executive Director of Strategen Environmental (Wetland Buffer Assessment). As we find later in these reasons that the Wetland Buffer Assessment relied on by Mr Maiorana in his evidence does not adequately determine a site-specific buffer requirement of 30 metres in this case, the weight to be given to Mr Maiorana's evidence in relation to issue 1 in this review is significantly diminished.

8. Mr Maiorana also refers in his evidence to the South Metropolitan Peel Sub-Regional Planning Framework (SMPSPF) which was published by the Commission in March 2018.  Mr Maiorana considers that, given the close proximity of the site to existing infrastructure, facilities and services, and the fact that the proposed structure plan involves a 'logical completion of the existing Bletchley Park urban front',[42] the proposed structure plan strongly aligns with the key principles of the SMPSPF (which he quotes at [80] of his substituted witness statement).  Mr Maiorana observes that the 11.6 dwellings per gross urban hectare of land estimated to be delivered by the proposed structure plan does not meet the 15 dwellings per gross urban hectare target in the SMPSPF and considers that 'maintaining the 50 [metre] wetland buffer and the R20 residential density coding designated by the approved Local Structure Plan would result in a significant reduction in both the number of dwellings per gross urban hectare of land and also per residential site hectare', which, in his view, would be 'inconsistent with the intent of the SMPSPF'.[43]  Mr Maiorana also notes in this regard that the Commission's operational policy Liveable Neighbourhoods: a Western Australian Government sustainable cities initiative (2009) (Liveable Neighbourhoods) recommends 15 dwelling per gross urban hectare.[44] 

   [42] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [81].

   [43] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [88] (emphasis added).

   [44] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 (Exhibit 35) [92].

9. However, the Commission now accepts that increased residential densities on the site, from R20 to R30 and, in part, R40, as shown in the proposed structure plan, are appropriate.[45]  Furthermore, as Ms Katherine Nunn, who was called by the Commission to give expert planning evidence, said:[46]

   … [A]n increase to the buffer width … would require a re-design of the [structure plan] area, and then location of the higher densities [that is, R40] elsewhere.  I think [this] could be accommodated and achieve a similar if not greater yield [than the proposed structure plan].

   [45] Unlike the originally proposed structure plan, the proposed structure plan does not include R25 residential housing density.

   [46] ts 180, 30 October 2019.

10. Mr Maiorana did not express a contrary opinion and we accept Ms Nunn's evidence on this aspect.  Furthermore, the applicants asserted during the hearing - and the Commission did not dispute - that the applicants' inability to meet the 15 dwellings per gross urban hectare target in the SMPSPF and Liveable Neighbourhoods is due to limitations of the sewerage system in the locality, rather than the need to provide wetland buffers, whether at 30 metres or 50 metres.[47]

    [47] ts 197-198, 30 October 2019.

11. We therefore find on the evidence that the proposed structure plan could be redesigned to accommodate the same wetland buffers as are shown on the existing structure plan and still achieve a similar lot yield to the proposed structure plan, because of the increased residential densities proposed by the applicants and accepted by the Commission.  We also find on the evidence that the applicants' inability to achieve 15 dwellings per gross urban hectare on the site is due to the sewerage system, rather than the wetland buffers shown on the existing structure plan.

12. Ms Nunn gave the following evidence:[48]

    The protection of Balannup Lake via a 50 metre minimum buffer reflects the long-term, site[-]specific planning for the Subject Land, as reflected in the existing Structure Plan, the MRS Parks and Recreation reservation, the designation of Bush Forever Site 413 and CCW. …

    In my opinion, the 50 metre wide buffer depicted on the existing Structure Plan is the result of strategic planning that balances the presence of environmental constraints with the impetus to facilitate residential development on the Subject Land.

    As such, the 50 metre minimum buffer, in this particular context, provides for an integrated land use and environmental management outcome.  A decision to reduce the buffer to 30 metres in this instance, without adequate technical justification and support from the relevant environmental agencies would undermine the planning decision making process.  In this regard, the application of a blanket 30 metre buffer at this final stage is not a site[-]specific response but is an unjustified departure from planning and environmental policy, in order to increase the development potential of the Subject Land.

    [48] Statement of evidence of Katherine Ellen Nunn dated 9 August 2019 (Exhibit 32) [36]-[38].

13. Ms Nunn also reviewed a number of sites located proximate to CCWs in the Southern River, Canning Vale and Harrisdale area and the planning background and decisions that resulted in buffer widths of less than 50 metres in those cases.  Ms Nunn considers that, in each of those cases, either a reduced buffer was contemplated early on in the planning process or resulted from site-specific negotiations, supported by the advice of 'relevant environmental agencies',[49] in particular, the EPA.

    [49] Statement of evidence of Katherine Ellen Nunn dated 9 August 2019 (Exhibit 32) [176].

14. This, in Ms Nunn's opinion, demonstrates the possibility for variation when supported by the relevant agencies and when adequately justified under applicable planning instruments, including when        site-specific circumstances warrant a buffer reduction.  However, where (as in this case) the technical assessment undertaken to justify a reduced buffer is not supported by DBCA, in Ms Nunn's opinion, it would be 'inconsistent with orderly and proper planning' to depart from the generic minimum buffer distance of 50 metres.[50]

    [50] Statement of evidence of Katherine Ellen Nunn dated 9 August 2019 (Exhibit 32) [184].

15. We do not accept Ms Nunn's evidence to the effect that it would be 'inconsistent with orderly and proper planning' to allow a departure from the planning principle expressed in GS 33, that wetlands that are to be protected require a minimum 50 metre buffer distance unless a site-specific buffer requirement has been determined, simply because a reduced buffer is not supported by DBCA.  Although DBCA should be consulted on structure planning or other planning applications in proximity to CCWs, and its advice should be taken into consideration in the exercise of planning discretion, DBCA is not the planning decision-maker and its lack of support for an application does not, in and of itself, mean that approval of the application would be contrary to orderly and proper planning.

Environmental evidence

1. Mr Darren Walsh provided expert environmental evidence for the applicants.  As indicated earlier, Mr Walsh is the author of the Wetland Buffer Assessment dated November 2018.[51]

   [51] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34).

2. In section 1.2 of the Wetland Buffer Assessment, which is entitled 'Scope', Mr Walsh states as follows in relation to the report:[52]

   The following key tasks were identified as necessary to support the applicants in respect to the matter as part of this report:

   1.Conduct a review of all relevant documentation and policy referenced within available witness statements and that are relevant to the situation.

   2.Undertake an independent buffer assessment of the [s]ite and associated [proposed] [s]tructure [p]lan, applying the seven-step methodology as identified in the draft guidelines for the Determination of Wetland Buffers (WAPC 2005), including spring flora, vegetation and fauna assessments[.]

   3.Undertake research to identify other local and broader examples of where buffer distances to conservation category wetlands have been determined at less than 50 [metres] through statutory planning and other processes[.]

   4.Prepare a report integrating the findings of the above tasks 1-3 to form the basis of an independent witness statement to support the applicant's proceedings.

   [52] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) page 1.

1. In section 2.1 of the Wetland Buffer Assessment, which is entitled 'Identified gaps', Mr Walsh said the following:[53]

   The absence of a formal wetland buffer assessment resulted in DBCA defaulting to the policy determined 50 [metre] buffer.  The preparation of a formal wetland buffer assessment and the comparison with local developments with similar buffers to CCWs will provide a             site[-]specific evaluation for a suitable buffer for the wetland.

   [53] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) page 4.

2. The Wetland Buffer Assessment then identifies and purports to address each of the following seven steps set out in the WAPC Guidelines.  As indicated earlier, it is common ground in this review that the WAPC Guidelines provides the applicable methodology for the determination of a site-specific wetland buffer requirement.  The seven steps set out in the WAPC Guidelines are as follows:[54]

   •Step 1 - Acknowledge existence of wetland;

   •Step 2 - Identify wetland attributes, wetland management category and establish management objective;

   •Step 3 - Define wetland function area;

   •Step 4 - Identify threatening processes;

   •Step 5 - Identify role of separation;

   •Step 6 - Identify separation requirement; and

   •Step 7 ­ Assessment of separation to achieve management objective.

   [54] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) pages 5-14.

3. In Step 2 of the Wetland Buffer Assessment, Mr Walsh states that '[b]ased on the classification of attributes' of the Balannup Lake CCW, 'the management objective is to preserve natural wetland attributes and functions'.[55]

   [55] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) page 5.

4. In defining the wetland function area (Step 3), the majority of the site, other than the north-western and south-eastern corners, are excluded, given the absence of natural vegetation associated with the wetland, and that it is completely degraded pasture, with areas of uncontrolled fill, used for horse agistment, and provides no ecological function to the adjacent CCW.

5. The identification of threatening processes (Step 4) refers to alteration to water regime, habitat modification, inappropriate recreational use and diminished water quality as the 'key threatening processes'.[56]  The Wetland Buffer Assessment then addresses likely impacts caused by the proposed development and sets out proposed management measures.   In cross-examination, Mr Walsh agreed that the 'key threatening processes' identified in the Wetland Buffer Assessment are 'fairly typical of the threatening processes presented by most residential developments'.[57]  The management measures proposed in the Wetland Buffer Assessment to control the threatening process and mitigate the impacts of the proposed development essentially comprise a 30 metre vegetated buffer, fencing along the mapped CCW boundaries and bioretention swales to accommodate runoff from storms up to the '1 year 1 hour' average recurrence interval (ARI) event.[58]

   [56] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) pages 11­12.

   [57] ts 67, 29 October 2019.

   [58] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) page 12.

6. The identification of the role of separation (Step 5) sets out details addressing the threatening processes identified.

7. The separation measures recommended to meet the management objective (Step 6) comprise:[59]

   [59] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) page 13.

   •Maintenance of the hydrological inflow to the wetland including the maintenance of pre­development groundwater levels[.]

   •Vegetated buffer from the mapped CCW boundary, which coincides with the boundary of the wetland function area to:

   •prevent surface flows of suspended solids[;]

   •reduce inflow of nutrients and other contaminants through infiltration[;]

   •provide spatial separation from urban activities[;]

   •reduce potential for colonisation by exotic species[;]

   •increase the total wildlife habitat of the CCW[; and]

   •provide barrier to visual and noise pollution[.]

   •Fencing at the buffer/CCW interface restricting access and preventing impact to wetland vegetation from inappropriate recreational activities.

8. The Wetland Buffer Assessment concludes the assessment of separation to achieve the management objective (Step 7) as follows:[60]

   Given the threatening processes have been managed by the design and management of the proposed development, a vegetated buffer of 30 [metres] with the creation of habitat linkage at the southern end of the site between the two wetland areas is deemed sufficient to prevent impacts from the threatening processes that remain and meet CCW management objectives.

   [60] Attachment 2 to Witness statement of Darren Lloyd Walsh dated 16 August 2019 (Exhibit 34) page 14.

9. Finally in the Wetland Buffer Assessment, Mr Walsh refers to      10 'relevant case studies' within the Southern River, Canning Vale and Harrisdale area where CCW buffers of less than 30 metres exist and notes that a number of approved developments have buffers of between 0 and 30 metres, with similar buffer vegetation as in the proposed structure plan.  However, the presentation and assessment of these 'case studies' in the Wetland Buffer Assessment is scant and cursory.  Furthermore, Mr Walsh conceded in cross-examination that he has not personally visited any of the 'relevant case studies', but rather these locations were visited by others at Strategen Environmental.[61]

   [61] ts 81-82, 29 October 2019.

10. Dr Michael Coote, an environmental scientist and the Principal Coordinator Wetlands within DBCA, provided expert environmental evidence for the respondent.

11. Dr Coote notes that 80 per cent of the wetlands on the Swan Coastal Plain have been seriously degraded or lost since European settlement and that clearing of wetland vegetation continues.  In this context, he considers that CCWs on the Swan Coastal Plain are 'scientifically and environmentally important',[62] as they are representative of ecosystems that have been largely lost, provide habitat for flora and fauna, perform hydrological and chemical processes, allow primary production in a naturally nutrient-poor landscape, have high biological diversity and provide aesthetic and landscape amenity in a largely urbanised environment.

    [62] Statement of evidence of Michael Coote dated 12 August 2019 (Exhibit 31) [15].

12. Dr Coote considers that the condition of the remaining portions of the Balannup Lake CCW are consistently good to excellent, with the exception of the edge effects, which are similar to the edge effects adjacent to other residential developments.

13. Dr Coote also identifies potential detrimental impacts of an inadequate or absent wetland buffer, including:[63]

    [63] Statement of evidence of Michael Coote dated 12 August 2019 (Exhibit 31) [37].

    •degradation and modification of the wetland edge;

    •disturbance of acid sulphate soils;

    •alteration of the hydrological regime;

    •alteration to surface water flows and runoff paths;

    •increased risk of sediments, nutrients and contaminants entering the wetland;

    •disruption of faunal movement and migration;

    •increased inappropriate activities (trampling, trail bike riding and littering);

    •modification of ecological food webs; and

    •disturbance to waterbird habitat.

14. The evidence of Dr Coote summarised at [78]-[80] above was not contradicted by Mr Walsh, nor seriously challenged by the applicants, and we accept it.

15. Drawing on a 2001 position statement on wetlands by the Water and Rivers Commission, based on Western Australian research,           Dr Coote considers that, while buffer requirements outside wetland boundaries vary widely (from 10 metres to 160 metres for dragonflies, to up to 1,000 metres to protect people from midge problems),               a 'minimum distance of 50 metres has been adopted' in GS 33.  Although he said that he has never recommended a lesser buffer than 50 metres, he acknowledges that a site-specific assessment can be undertaken.[64]

    [64] Statement of evidence of Michael Coote dated 12 August 2019 (Exhibit 31) [39]-[42].

16. Dr Coote undertook a risk assessment of the potential threats to the Balannup Lake CCW arising from the development contemplated by the proposed structure plan which, in his view, include increased run­off, contributing pollution and nutrient loads, increased risk of weeds, dieback, fragmentation of habitat, disturbing or preying upon wetland fauna, littering and rubbish dumping, inappropriate fire regimes, and trampling or removal of vegetation resulting in erosion.

17. Dr Coote also reviewed the 10 'relevant case studies' referred to in the Wetland Buffer Assessment and expresses the opinion that, where buffers have been reduced from 50 metres, there is an increased risk of significant edge effects.

18. Dr Coote concludes his witness statement with an expression of opinion that 'the provision of a buffer of less than 50 metres is likely to lead to increased pressure on the existing wetland values surrounding the subject land'.[65]

    [65] Statement of evidence of Michael Coote dated 12 August 2019 (Exhibit 31) [72].

19. Mr Walsh and Dr Coote provided a joint statement following a chaired expert conferral.  This document addresses the following issue:[66]

    Does the amended structure plan proposed by the [applicants] provide a sufficient buffer to Conservation Category Wetlands (CCW) located within and adjacent to the subject land?

    [66] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) page 2.

20. In addressing this issue, the environmental expert witnesses addressed a number of specific questions and reached some agreement on these questions.

21. In regard to the adequacy of the site-specific investigations, the witnesses agree that the investigations confirm that the surrounding wetlands UFI 15509 and UFI 14882 'have values commensurate with a management category of 'conservation'' and that '[f]urther investigations will not alter the agreed management category'.[67]

    [67] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) page 3.

22. In relation to the question of whether the Wetland Buffer Assessment adequately addresses threatening processes that have the potential to impact the CCW, the expert witnesses agree that:[68]

    [68] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) page 4.

    •the Wetland Buffer Assessment identifies the key threatening processes;

    •amendment to the design of the buffer area to include a fence on the development side of the buffer, rather than on the wetland side (as proposed, prior to that time, by the applicants), 'will assist in reducing the impacts to the surrounding wetland values from the development';

    •amendment to the design of the buffer area to include:

    … a 50 metre strip of land between Ranford Road and the development site which is currently proposed as Public Open Space to become part of the contiguous buffer area around the development will greatly assist in reducing the impacts to the surrounding wetland values from the development.  The area should also have a fence on the development side of the buffer and will be managed in the same way as the other buffer areas with revegetation with suitable wetland vegetation.  This will allow for a suitable fauna corridor between wetland UFI-14882 and UFI-15509[;]

    and

    •fencing for the buffer areas should be adequate to 'prevent dogs from entering the surrounding wetlands and deter human access'.

23. In addition, in their joint statement, the environmental expert witnesses assess the 'comparative environmental merit' of the proposed structure plan as against the existing structure plan.  In this regard, notwithstanding that Dr Coote maintains that a 50 metre buffer should be applied around the entire CCW, the experts agree that:[69]

    … the revised [s]tructure [p]lan submitted by the applicant[s] provided a superior environmental outcome for the protection of the adjacent wetlands [to] the existing approved [s]tructure [p]lan.  This was largely as a result of the improved linkage between the two wetlands located east and west of Lot 1627 and noting that the approved [s]tructure [plan] does not initially provide a 50 metre buffer for the whole of the wetlands.

    [69] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) pages 4-5.

24. In oral evidence, the expert witnesses clarified that their words 'noting that the approved [s]tructure [p]lan does not initially provide a 50 metre buffer for the whole of the wetlands' refer only to the south-eastern boundary of the site adjoining Lot 1628.[70]  As indicated earlier, in that location the existing structure plan map shows the 'Local Open Space' reserve as approximately 40 metres in width.  As also indicated earlier, this appears to be the case because the mapped boundary of the CCW on Lot 1628 is set back approximately 10 metres from the common boundary with the site.  Therefore, although the existing structure plan map only shows a 40 metre buffer on the site adjoining Lot 1628, the total effective buffer to the CCW on Lot 1628 is             50 metres. 

    [70] ts 44 and 57, 29 October 2019.

25. Given that the proposed structure plan proposes a 30 metre buffer on the site adjoining Lot 1628, whereas the existing structure plan shows a 40 metre buffer on the site in that location, clearly the proposed structure plan cannot provide a 'superior environmental outcome for the protection of the adjacent wetlands [to] the existing approved [s]tructure [p]lan' on the basis that the existing structure plan 'does not initially provide a 50 metre buffer for the whole of the wetlands'.  However, we accept the joint position of the expert witnesses that the proposed structure plan provides 'a superior environmental outcome for the protection of the adjacent wetlands [to] the existing approved [s]tructure [p]lan … as a result of the improved linkage between the two wetlands'.  We will discuss this further in relation to the issue of wetland buffers below.  Furthermore, we note that, on the south-eastern boundary of the site with Lot 1628, the proposed structure plan in fact proposes only a 10 metre reduction in the buffer from the existing structure plan, not a 20 metre reduction in the buffer, as both parties initially contended.

26. There were, however, substantial areas of disagreement between the expert witnesses on the questions addressed in their joint statement.

27. Mr Walsh considers that the site investigations in the Wetland Buffer Assessment justify a reduction in the recommended minimum buffer to 30 metres, as 'the threats have been adequately managed to maintain wetland values in the surrounding wetlands' and 'there is no evidence that there is [a] quantifiable difference between the efficacy of non­vegetated or revegetated 30 [metre] and 50 [metre] buffers in relation to the protection of wetland ecological values'.[71]  He concludes that the Wetland Buffer Assessment 'supports the suitability of a 30 metre buffer in this circumstance' and 'an increase in the buffer from 30 [to] 50 metres will not lead to a material change in the effectiveness of the buffer in managing threatening processes'.[72]

    [71] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) pages 5-6.

    [72] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) page 7.

28. Dr Coote maintains that 'the State Government policy requiring a minimum 50 metre buffer is based on scientific investigations' and that 'the evidence presented in the Wetland Buffer Assessment [confirmed] that the surrounding CCW have very high values and require a minimum 50 metre buffer to protect their values'.[73]  Dr Coote has 'concerns in particular that a 30 metre buffer will be inadequate to ensure that risks from weeds, human access, noise, vibration and disturbance and predation from pets into the surrounding wetlands will be adequately managed'.[74]  He referred to scientific studies which he said support his concerns.

Are the proposed buffers to the CCW adequate and appropriate in the circumstances of this case?

[73] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) page 5.

[74] Joint statement of environmental experts dated 25 September 2019 (Exhibit 36) page 5.

1. The consideration of whether the proposed buffers to the Balannup Lake CCW are adequate and appropriate in the circumstances of this case raises the following two sub-issues for the Tribunal: 

   1.Whether the Wetland Buffer Assessment has adequately determined a site-specific buffer requirement of 30 metres.

   2.If the answer to sub-issue 1 is 'no', whether there is a cogent reason or sound basis to depart, in the exercise of planning discretion and as a matter of orderly and proper planning, in the circumstances of this case, from the application of the planning principle that wetlands that are to be protected require a minimum 50 metre buffer distance, and, if so, to what extent.

Does the Wetland Buffer Assessment adequately determine a site-specific buffer requirement of 30 metres?

1. As indicated earlier, GS 33 states as follows:[75]

   …

   Wetlands that are to be protected require a minimum 50 metre buffer distance … Alternatively a site-specific buffer requirement may be determined.

   [75] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 8, page 533.

2. As also stated in GS 33, and as was agreed by the environmental expert witnesses and the parties in this case, the methodology to establish a site­specific buffer requirement is set out in the WAPC Guidelines.  As indicated earlier, Mr Walsh's Wetland Buffer Assessment identifies and purports to address the seven-step methodology set out in the WAPC Guidelines for a site-specific wetland buffer determination.

3. The WAPC Guidelines requires in Step 2 of the methodology that the wetland attributes and the wetland management category are identified and the management objective is established.  The WAPC Guidelines states that:[76]

   A critical step in determining buffering requirements is the identification and definition of the management objective of the wetland.

   [76] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 6, page 310.

4. As indicated earlier, the Wetland Buffer Assessment identifies the 'management objective' for the relevant wetlands as 'to preserve natural wetland attributes and functions'.  This management objective was not challenged by Dr Coote.  However, there is a significant difference of opinion between Mr Walsh and Dr Coote - and a significant dispute between the parties - as to whether the Wetland Buffer Assessment adequately establishes a separation requirement (Step 6) of 30 metres in accordance with the WAPC Guidelines.

5. In setting out the process to establish a site-specific separation requirement, the WAPC Guidelines states as follows:[77]

   …

   Recommended separation distances are given as ranges for several measures, in particular for firebreaks, aesthetic improvements, and nutrient and sediment control. In a case-by-case assessment, the distance should be determined by taking into account the physical characteristics relevant to the wetland, including wetland values and attributes, the surrounding land use and the feature being mitigated for or against (threatening process).

   The rationale for selection of a separation distance should be justified in terms of the wetland's site-specific characteristics.

   …

   The buffering requirements in this guideline have been determined generally on the basis of management objective.

   Achievement of the management objective may require more than the proposed distance, or may be able to be achieved with less. Variation from the suggested distances needs to be considered on the merits of each case.

   The recommended separation and management to mitigate potential impacts (threatening processes) for category C, R and M wetlands is shown in tables 8, 9 and 10 respectively.

   [77] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 6, page 347.

1. The practical question for the Tribunal is how to quantify, in terms of an appropriate reduction in buffer distance from 50 metres, the value of the environmental offset provided by the ecological linkage and to also take into account the benefit of fencing and consequent preclusion of dogs and controlled and restricted human access to the buffer areas.

2. In our view, the logical and appropriate way to do so is to calculate the area of the ecological linkage provided and then allow a reduction in the buffer from 50 metres equivalent to that area, with a further adjustment to take into account the benefit of fencing on the development side of the buffer.

3. The ecological expert witnesses indicated the location where fencing should occur on a copy of the proposed structure plan.  This is reproduced below:[126]

   [126] Exhibit 37.

4. The proposed ecological linkage is located between the Ranford Road frontage and the fence indicated by the expert witnesses parallel to the road.  The width of the ecological linkage is 50 metres.              Mr Maiorana estimates that its length, between the two proposed         30 metre buffers, adjacent to Ranford Road is approximately 70 - 75 metres.[127]  As can be seen on the plan reproduced immediately above, the length of the ecological linkage increases as one moves away from Ranford Road.  To determine the approximate land area of the ecological linkage, we will therefore assume that its length between the proposed 30 metre buffers is uniformly 80 metres and therefore that its total length between the 'Indicative CCW Boundary for Planning Purposes' referred to in the plan is 140 metres for the purposes of our analysis.  The total land area of the proposed ecological linkage is therefore approximately 140 metres by 50 metres, that is approximately 7,000m².

   [127] ts 124, 30 October 2019.

5. The Commission prepared the following map of the site which indicates the additional area required if the buffer to the CCW were 50 metres, rather than 30 metres in width:[128]  

   [128] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 2, Attachment 9, page 162.

6. The total additional land area required for a 50 metre, rather than a 30 metre, buffer is 18,074m².  Dividing 18,074m² by 20 metres, which is the buffer width this area represents, gives a total length of the two indicated buffers of approximately 900 metres.

7. If one divides the area of the ecological linkage (approximately 7,000m²) by the total length of the buffers (approximately 900 metres), the value of the ecological linkage which we have found is a relevant environmental offset translates to a reduction in buffer width of approximately 7.78 metres to 42.22 metres.  However, we recognise that a portion of the approximately 7,000m² ecological linkage would also serve a buffer function (and therefore strictly should not be included in the calculation of the value of the ecological offset).

8. The evidence does not permit a similar mathematical calculation of the environmental benefit value of the proposed fencing on the development side of the buffer to be made, so as to be able to translate it to a particular further reduction in the width of the buffer.  Recognising that, as we said in the preceding paragraph, a portion of the area of the ecological linkage we have calculated would also serve a buffer function, but also that the proposed fencing of buffer areas would have an ecological benefit by precluding dogs from entering the wetlands and by controlling and restricting human access to the buffer areas, on balance the 7.78 metre reduction from the generic 50 metre buffer should not be reduced in consequence of the dual function of part of the ecological linkage, but rather should be rounded up to eight metres.  On balance, in the particular circumstances of this case, the ecological benefits proposed by the applicants warrant a reduction in the buffer from 50 metres to 42 metres.

9. In our view, the planning principle expressed in GS 33 that wetlands that are to be protected require a minimum 50 metre buffer (unless a site-specific buffer requirement has been determined) should be departed from in the particular circumstances of this case.  In our view, it is adequate and appropriate, in the circumstances of this case, for the buffer to be reduced from 50 metres to 42 metres, because the proposed structure plan provides an appropriate environmental offset, in terms of the ecological linkage, as well as ecological benefit to the wetlands by fencing, justifying a reduction of eight metres in the buffer.  As indicated earlier, these environmental benefits of the proposed structure plan are not required by the existing structure plan.

10. Moreover, a 42 metre buffer is generally consistent with the one example in the evidence where a buffer of less than 50 metres has been provided for the Balannup Lake CCW, that is Lot 1625 in the 'relevant case studies' in the Wetland Buffer Assessment, where the buffer is      42 - 46 metres.  There is no evidence of any equivalent environmental offset to the ecological linkage in this case having been provided in the case of Lot 1625.  Furthermore, although Dr Coote observed '[w]eed encroachment into edge of wetland' in that location, he also said that:[129]

    [Eden Court] Drive encroaches into edge of Ballanup [sic] Lake vegetation with buffer used as POS with landscaped garden areas, including irrigated turf, raised garden beds and fencing.

    [129] Attachment MC 11 to Statement of evidence of Michael Coote dated 12 August 2019 (Exhibit 31) page 48.

11. Thus, at least part of the 42 - 46 metre buffer area in Lot 1625 is used as Public Open Space and, indeed, apparently as unrestricted use Public Open Space.  Although, as we discuss in relation to issue 2 below, part of the 42 metre buffer area we consider is adequate and appropriate in this case should be utilised for unrestricted use Public Open Space, any such Public Open Space is to be located no closer than 30 metres from the CCW and is to be fenced on the wetland side of the unrestricted Public Open Space.  It does not appear on the evidence that the Public Open Space within Lot 1625 is similarly constrained.

12. For the foregoing reasons, we are satisfied that a 42 metre buffer fenced on the development side would be adequate and appropriate in the circumstances of this case and would satisfy the management objective 'to preserve natural wetland attributes and functions' and would 'maintain or improve the ecological and physical function' of the CCW (cl 5.2(iv) of SPP 2)[130] and 'maintain or enhance the environmental attributes, functions and values of the [CCW] and minimise the impact of nearby land uses …' (cl 5.3(v) of SPP 2.9).[131]

Conclusion in relation to whether the proposed buffers to the CCW are adequate and appropriate in the circumstances of this case

[130] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 5, page 293.

[131] Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 7, page 387.

1. We conclude in relation to issue 1 that the proposed minimum     30 metre buffers to the CCW are not adequate and appropriate in the circumstances of this case.  The Wetland Buffer Assessment has not adequately determined a site-specific buffer requirement of 30 metres.  Furthermore it would be entirely anomalous and contrary to orderly and proper planning to allow 30 metre buffers for the last piece of residential development surrounding the wetland when the proposed development would give rise to what the applicants' environmental expert witness concedes are 'fairly typical' threatening processes presented by most residential developments. 

2. However, we find that, in the circumstances of this case,              an adequate and appropriate buffer to the CCW is 42 metres.  As the edge of the mapped CCW on Lot 1628 is approximately 10 metres away from the common boundary with the site, the adequate and appropriate buffer on the site adjoining the common boundary with Lot 1628 is 32 metres from that common boundary.

Would there be adequate Public Open Space for residents of the local structure plan area if the proposed buffers to, and linkage between, the CCW is fenced on the development side of the buffers as recommended by the environmental expert witnesses?

1. Mr Maiorana gave evidence, which was not questioned or contradicted, and which we accept, that the Public Open Space in the proposed structure plan (prior to the proposal of the fenced ecological linkage and the fencing of the buffers on the development side) would have comprised 14.17 per cent of the gross subdivisible area of the site.[132]  This would have exceeded the '10 per cent requirement' referred to in cl 3.1.2 of the Commission's Development Control Policy 2.3 - Public Open Space in Residential Areas (DCP 2.3) and provision R4 of Element 4 - Public parkland of Liveable Neighbourhoods, both of which require a minimum contribution of 10 per cent of the gross subdivisible area of a development site to be given up for Public Open Space.

   [132] Substituted witness statement of David Anthony Maiorana dated 16 August 2019 [19]. Mr Maiorana provided a detailed calculation of Public Open Space in accordance with Liveable Neighbourhoods to the Commission together with the modified proposed structure plan on 11 January 2019 (Respondent's section 24 bundle dated 25 June 2019 volume 1 (Exhibit 29.1) tab 2, Attachment 6, Appendix B, page 71).

2. However, following consideration of the fenced ecological linkage and the fencing of the buffer areas identified by the environmental expert witnesses in their joint statement, and oral evidence given by them on 29 October 2019, at the Tribunal's request, on the morning of 30 October 2019, Mr Maiorana provided a revised schedule of Public Open Space which takes into account the proposed fenced ecological linkage and fencing of the buffer areas.[133]

   [133] Exhibit 38.

3. The revised Public Open Space schedule reveals two salient points.  First, the overall provision of Public Open Space on the site is reduced to only 8.85 per cent of gross subdivisible area (rather than 14.17 per cent of gross subdivisible area originally proposed) which is below the 'minimum contribution of 10 per cent of the gross subdivisible area [being] given up free of cost by the subdivider for public open space' under provision R4 of Element 4 of Liveable Neighbourhoods.  Secondly, the provision of unrestricted use Public Open Space is reduced and does not meet the policy of at least 80 per cent of Public Open Space being unrestricted use Public Open Space for the purpose of active and passive recreation under provision R5 of Liveable Neighbourhoods.[134]  In particular, whereas, according to       Mr Maiorana's revised schedule, a minimum of 0.5049 hectare of unrestricted use Public Open Space is relevantly required in accordance with Liveable Neighbourhoods, the proposed structure plan provides only 0.4324 hectare of unrestricted use Public Open Space, with the consequence that there is a deficiency of 725m² in the provision of unrestricted use Public Open Space.  Thus, in consequence of the provision of the ecological benefits to the CCW, on account of which we have determined that the buffer would adequately and appropriately be 42 metres (rather than 50 metres) in the circumstances of this case, the Public Open Space provision under the proposed structure plan would in fact be significantly less than the applicants had proposed.

   [134] Although under provision R6 of Element 4 of Liveable Neighbourhoods '[t]he restricted use public open space may exceed the maximum two per cent as defined in R4 and R5, where an appropriate management plan is agreed by the [Commission] in consultation with the local government and the subdivider', it also states that '[a] public open space contribution allowance will not be given for any land identified as restricted use public open space over and above the two per cent'.

4. Furthermore, in our view, the inadequacy of unrestricted use Public Open Space under the proposed structure plan is in fact greater than a numerical shortfall of 725m².  This is because, with the exception of an approximately 20 metre wide area of unrestricted use Public Open Space adjoining the ecological linkage, the other areas of unrestricted use Public Open Space proposed in the structure plan are all narrow areas adjoining road reserves.  We accept Ms Nunn's evidence that, because of their location, size and shape, these areas would not fulfil a sufficiently useful unrestricted use Public Open Space function, but rather would be 'limited in their function [to] providing passive [P]ublic [O]pen [S]pace and recreation opportunities'.[135]

   [135] ts 159, 30 October 2019.

5. In Bestry Property Group Pty Ltd and Western Australian Planning Commission, the Tribunal said the following at [168]-[169]:

   168Empire Securities Pty Ltd and Western Australian Planning Commission [[2005] WASAT 98] involved an application for review of development contribution conditions requiring the subdivider to identify and vest in the Crown 10 per cent of the gross subdivisible area for Public Open Space, 'such land to be ceded free of cost and without any payment or compensation by the Crown'. In Empire Securities Pty Ltd and Western Australian Planning Commission, after setting out at [20] the passage from Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [[2002] wasca 276; (2002) 122 lgera 433] at [24], the Tribunal then said the following at [21]-[22]:

   21Mr Bydder [who was counsel for the Commission] submitted that, applying these principles to the present case, the relevant question is:

   "Why should the policy of 10 per cent contribution for public open space not be applied?"

   22I accept that this is the relevant starting point, as the "10 per cent requirement" appears to be soundly based and has been consistently applied in this State for almost 50 years.  Indeed, Mr McKellar, who represented the applicants, did not question this approach, but put forward essentially five arguments as to why the provision of 10 per cent of the area of the site for public open space was not necessary or reasonable.

   169So too, in this case, having regard to the principles in relation to the application of planning policy, the question that the Tribunal must determine in the exercise of planning discretion is whether there is any cogent reason to depart from the application of the planning principle stated in the planning policy framework requiring an area equivalent to 10 per cent of gross subdivisible area to be given up and vested in the Crown for Public Open Space, and ceded free of cost and without any payment of compensation by the Crown, in the circumstances of this case.  The expression '10 per cent requirement' in Empire Securities Pty Ltd and Western Australian Planning Commission at [22] was taken from cl 3.1.2 of DCP 2.3, which remains an applicable policy.  [State Planning Policy 3.6 - Development contributions for infrastructure (SPP 3.6)] and Liveable Neighbourhoods, which both contain the same policy requirement that 10 per cent of the gross subdivisible area is to be given up by the subdivider for Public Open Space, vested in the Crown and ceded free of cost and without any payment of compensation by the Crown, have both come into effect since the publication of the decision in Empire Securities Pty Ltd and Western Australian Planning Commission.  The formulation and adoption of SPP 3.6 and Liveable Neighbourhoods since that time only underscores that the key issue in the exercise of discretion in relation to the disputed conditions is whether there is any cogent reason to depart from the clear contemplation of the State planning framework in relation to development contributions for Public Open Space, that 10 per cent of the gross subdivisible area is to be given up and vested in the Crown for Public Open Space, and ceded free of cost and without any payment of compensation by the Crown, in the particular circumstances of this case. 

6. In our view, there would not be adequate Public Open Space for the residents of the local structure plan area if the proposed ecological linkage and buffers are fenced, because both the overall provision of Public Open Space (being only 8.85 per cent of the gross subdivisible area) and particularly the provision of active recreational (as part of unrestricted use) Public Open Space (being essentially only the 20 metre wide area adjoining the ecological linkage) is significantly deficient.  Moreover, there is no cogent reason or sound basis, on the evidence before the Tribunal, to depart from the planning principle that at least 10 per cent of gross subdivisible area is to be given up for Public Open Space and at least 80 per cent of Public Open Space is to be unrestricted use Public Open Space in the circumstances of this case.

7. Mr Maiorana provided a schedule of other Public Open Space in the locality which residents of the site could utilise.  Provision R14 of Element 4 of Liveable Neighbourhoods states that 'local parks' (up to 3,000m² in area) 'should be provided in 150 - 300 metres (of safe walking distance) to all dwellings'.  Of the four locations identified by Mr Maiorana, Tiger Circle Reserve (150 metres from the north-eastern boundary of the site), Aldenham Drive Reserve (270 metres from the north-eastern boundary of the site) and the open space on the corner of Tiger Circle and Prairie Street (270 metres from the north-eastern boundary of the site) are within about 300 metres of the northern part of the site.  While these three Public Open Space locations may potentially be utilised by some residents of the site, they are not conveniently located for most of the proposed residential areas on the site.  Furthermore, these three Public Open Space locations were presumably provided for the benefit of residents in developments to the north and, as Ms Nunn said:[136]

   [I]n the absence of a broader analysis of the [P]ublic [O]pen [S]pace in the area, it's difficult to really comment on the quality and amount of [P]ublic [O]pen [S]pace that would be available to the future residents of the structure plan area.

   [136] ts 134, 30 October 2019.

8. It would not therefore be appropriate for the applicants to rely on the locations referred to by Mr Maiorana to offset any deficit of Public Open Space on the site.

9. Furthermore, in our view, the shortfalls in Public Open Space and unrestricted use Public Open Space on the site, consequent upon the ecological linkage and fencing of the buffer, can be addressed by the provision of a limited number of well-located unrestricted use Public Open Spaces areas within the 42 metre wetland buffer.  We note that two of the Public Open Space areas referred to by Mr Maiorana to the north of the site are located within the buffer to the Balannup Lake CCW.  This is also the case in relation to Lot 1625 referred to in the Wetland Buffer Assessment.  In our view, consistently with the joint evidence of Mr Walsh and Dr Coote, any unrestricted Public Open Space areas located within the 42 metre buffers we have determined are adequate and appropriate should be located more than 30 metres from the CCW and should be fenced on the wetland side.  Such fencing should meet up with the fencing which otherwise is to be located on the development side of the buffers.

10. Finally, we note that the planning expert witnesses agreed that, if the ecological linkage were reduced to 30 metres in width, then the Public Open Space proposed is likely to be compliant with the planning principle that at least 10 per cent of gross subdivisible area is to be given up as Public Open Space and that at least 80 per cent of Public Open Space is to be unrestricted use Public Open Space.  However, the environmental expert witnesses gave clear evidence (which we accept) that the ecological linkage should be 50 metres in width and fenced on the development side.  As the Commission submits, there is                 'no evidence to support a linkage of less than 50 metres from the environmental point of view'.[137]

Outcome of review

[137] ts 212, 30 October 2019.

1. Clause 22(1) of the deemed provisions states as follows:

   On receipt of a report on a proposed structure plan, the Commission must consider the plan and the report and may —

   (a)approve the structure plan; or

   (b)require the local government or the person who prepared the structure plan to —

   (i)modify the plan in the manner specified by the Commission; and

   (ii)resubmit the modified plan to the Commission for approval;

   or

   (c)refuse to approve the structure plan.

2. Both parties contend that although the matter before the Tribunal involves an application for review of the refusal by the Commission of the proposed structure plan under cl 22(1)(c) of the deemed provisions, the Tribunal has power in these proceedings to require the applicants to modify the structure plan in a specified manner and resubmit the modified structure plan to the Commission for approval under cl 22(1)(b) of the deemed provisions.  Furthermore, both parties contend that this would be the appropriate outcome of the review.  We concur.

3. The Commission contends that the proposed structure plan should be modified as follows:[138]

   [138] Respondent's further amended without prejudice draft schedule of modifications to structure plan (Exhibit 42) (original emphasis and formatting).

   1.Amend the Structure Plan map to show a uniform 50 metre buffer between the "Indicative CCW Boundary for Planning Purposes" depicted on the Structure Plan map and the proposed road network.

   2.Include text in Part 1 of the supporting documentation for the Structure Plan specifying the type and height of the fencing to be provided on the development side of the buffer to the "Indicative CCW Boundary for Planning Purposes" shown on the Structure Plan map.

   3.Amend the Structure Plan Map ("Outline Development Plan – Phase 2 plan") and the accompanying subdivision concept plan to show a continuous ecological linkage, to be revegetated with appropriate wetland species, between wetlands UFI 15509 and UFI 14881 of 50 metres in width adjacent to Ranford Road, incorporating:

   a.appropriate fencing separating the ecological linkage from adjoining public open space; and

   b.a pedestrian connection between the proposed road network and Ranford Road.

   4.Preparation of a management plan for the ecological linkage area and the other restricted use public open space areas to identify the fencing, revegetation and ongoing management responsibilities.

   5.Update the following documents in Part 2 of the Structure Plan to reflect the landscape concept plan to reflect the inclusion of the ecological linkage:

   a.Local Water Management Strategy;

   b.Bushfire Management Plan;

   c.Landscape Concept Plan;

   d.The Revised Wetland Buffer Assessment.

   6.Revise the public open space (POS) schedule to reflect the inclusion of the ecological linkage and provide further information in relation to the public open space (POS) shown as Local Open Space on the Structure Plan map, as follows:

   a)individual concept plans to be provided for each area of unrestricted POS, and to include areas and dimensions;

   b)precise areas of unrestricted POS to be provided, including turf, path, play area and also revegetated connectivity corridor;

   c)the retaining wall heights so as to confirm access capabilities to POS;

   d)confirmation of path along road reserve to provide access to POS area; and

   e)confirmation of the irrigation source for the POS.

   7.Modify the proposed road network on the "Outline Development Plan – Phase 2 plan", as follows:

   a)decrease the angle of the proposed laneway to provide improved vehicle access, sightlines and safety, in consultation with the City of Gosnells; and

   b)provide a shared path within the road reserve on the side of the road adjacent to the POS, to avoid increased conflicts between vehicle crossovers and pedestrians.

   8.Include a notation on the "Outline Development Plan – Phase 2 plan" to indicate the following:

   A condition requiring the placement of notifications on title may be imposed at subdivision stage for the creation of lots within the 500m kennel buffer.

   9.Provide a consolidated structure plan amendment document, including:

   a.the revised plans referred to in the above modifications, minus the Roberts Day branding on the "Outline Development Plan – Phase 2";

   b.a revised Part 1 and updated technical appendices in Part 2; and

   c.an endorsement page at the front of the document.

   10.Include text relating to the site contamination and remediation works to be undertaken in Part 1.

   11.Provide a revised Local Water Management Strategy, in accordance with the recommendation of the Department of Water and Environmental Regulation to provide proof of concept for how water issues will be managed and the agreed design principles and strategies will be met. Include consideration of 5 and 100 year stormwater event storage.

   12.Provide a revised Bushfire Management Plan, in accordance with the recommendation of the Department of Fire and Emergency Services to ensure bushfire risk can be managed and an appropriate BAL can be achieved for the proposed residential lots.

4. The applicant's position is that the width of the buffer in modification 1 and the width of the ecological linkage in modification 3 should each be reduced from 50 metres to 30 metres. 

5. It follows from our reasons in relation to issue 1 above that modification 1 should be amended to state as follows:

   Amend the structure plan map to show a uniform 42 metre buffer between the 'Indicative CCW Boundary for Planning Purposes' depicted on the structure plan map and the proposed road network other than at the common boundary with Lot 1628 where the buffer shall be 32 metres from that common boundary.

6. It also follows from our reasons in relation to issue 1 that modification 3 should be imposed in the form proposed by the Commission.

7. It follows from our reasons in relation to issue 2 above that a further modification (modification 6A) should be imposed as follows:

   Amend the structure plan map to show:

   a.at least 10 per cent of the gross subdivisible area of the site to be given up as Public Open Space (in accordance with Liveable Neighbourhoods 2009); and

   b.at least 80 per cent of Public Open Space as unrestricted use Public Open Space (in accordance with Liveable Neighbourhoods 2009).

   Unrestricted use Public Open Space may be located within the part of the buffer referred to in modification 1 which is more than 30 metres from the 'Indicative CCW Boundary for Planning Purposes' depicted on the structure plan map and is to be fenced on the wetland side of the unrestricted use Public Open Space in accordance with modification 2.

8. In relation to modifications 3, 6 and 7, the applicants accept the need to revise the Public Open Space schedule to reflect the inclusion of the ecological linkage, but otherwise question whether the level of detail sought in these modifications is required at structure plan stage and should appropriately be deferred to subdivision stage. 

9. In our view, modification 3 is warranted, in light of the significance of the ecological linkage in this review.

10. In our view, the level of detail required in relation to Public Open Space in modification 6 is warranted at structure plan stage, in the circumstances of this case, because of the need to provide additional unrestricted use Public Open Space, in consequence of the ecological linkage and fencing of the buffers, and the need to strategically plan both unrestricted and restricted use Public Open Space areas, and the relationship between them, in a cohesive and comprehensive manner for the proposed structure plan area, in consequence of the proximity of the Balannup Lake CCW.

11. In our view modification 7 is warranted, because the site may be subdivided in stages and the road layout, including the laneway and shared paths within the road reserve, should be cohesively and comprehensively planned for the structure plan area at the structure plan stage.  However, we note that modification 7a. may become redundant as a result of modification 1 and the consequent need to redesign the structure plan area.

12. Although the applicants ultimately accepted modification 9, they initially questioned whether it would be more appropriate as a 'procedural order' of the Tribunal, rather than a modification to the structure plan. In our view, modification 9 is appropriate, even though it could also be achieved by an ancillary order of the Tribunal under s 73 of the SAT Act.

13. The remainder of the modifications proposed by the Commission were agreed between the parties.  We consider that they are generally appropriate.  However, in our view, the following changes to the proposed modifications should be made for the following reasons:

    (1)In modification 2, a colon and division into paragraph 'a.' should be added after the word 'provided' and the following should be added at the end:

    b.on the wetland side of any unrestricted use Public Open Space located within the 12 metre section of the buffer which is closest to the proposed road network.

    (as we have determined that unrestricted use Public Open Space may be located in the part of the buffer which is more than 30 metres from the CCW).

    (2)In modification 3, a comma should be added after 'UFI 14881' (for clarity).

    (3)The references to 'Outline Development Plan - Phase 2 plan' should be deleted in modifications 3, 7, 8 and 9a. and replaced with 'structure plan map' in modifications 7, 8 and 9a. (to reflect the terminology of the deemed provisions).

    (4)The words 'including self-closing gates,' should be added after 'fencing,' in modification 4 (to reflect the joint environmental evidence).

    (5)The words 'to reflect the landscape concept plan' in modification 5 should be deleted (as they appear to be otiose).

    (6)The word 'and' should be added between modification 5 c. and d. (for clarity and consistency).

    (7)The word 'use' should be added after 'unrestricted' in modification 6 a) and b) (to reflect the terminology in Liveable Neighbourhoods).

    (8)In modifications 6 and 7, the words 'Public Open Space' should be substituted for 'POS' (for consistency of expression).

14. Finally, we note that Ms Nunn gave the following evidence:[139]

    … [A]n increase to the buffer width [in accordance with modification 1] … would require a re-design of the [structure plan] area, and then location of the higher densities [that is, R40] elsewhere.  I think [this] could be accommodated and achieve a similar if not greater yield [than the proposed structure plan]. …

    It would probably be a better outcome to have [R40 development] located closer to the areas of useable open space, given that an R40 development won't have large areas of … private open space within the lots, so potentially, down more towards Ranford Road within the site.

    [139] ts 180-181, 30 October 2019.

15. This evidence was not challenged and Mr Maiorana did not express a contrary opinion.  We accept Ms Nunn's evidence set out in the preceding paragraph and consider it to reflect orderly and proper planning of the site.

Orders

1. For the reasons set out earlier, we make the following orders:

   1.The application for review is allowed in part.

   2.The decision made by the Western Australian Planning Commission on 30 April 2019, to refuse to approve the Southern River Precinct 2 Local Structure Plan - Phase 2 (structure plan), is set aside and a decision is substituted requiring the applicants to modify the structure plan in the manner specified in the schedule of modifications in Attachment A and resubmit the structure plan, modified in this manner, to the Western Australian Planning Commission for approval.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MF

Associate to the Honourable Judge Parry

3 DECEMBER 2019

Attachment A - Schedule of modifications

1.Amend the structure plan map to show a uniform 42 metre buffer between the 'Indicative CCW Boundary for Planning Purposes' depicted on the structure plan map and the proposed road network other than at the common boundary with Lot 1628 where the buffer shall be 32 metres from that common boundary.

2.Include text in Part 1 of the supporting documentation for the structure plan specifying the type and height of the fencing to be provided:

a.on the development side of the buffer to the 'Indicative CCW Boundary for Planning Purposes' shown on the structure plan map; and

b.on the wetland side of any unrestricted use Public Open Space located within the 12 metre section of the buffer which is closest to the proposed road network.

3.Amend the structure plan map and the accompanying subdivision concept plan to show a continuous ecological linkage, to be revegetated with appropriate wetland species, between wetlands UFI 15509 and UFI 14881, of 50 metres in width adjacent to Ranford Road, incorporating:

a.appropriate fencing separating the ecological linkage from adjoining Public Open Space; and

b.a pedestrian connection between the proposed road network and Ranford Road.

4.Preparation of a management plan for the ecological linkage area and the other restricted use Public Open Space areas to identify the fencing, including self-closing gates, revegetation and ongoing management responsibilities.

5.Update the following documents in Part 2 of the structure plan to reflect the inclusion of the ecological linkage:

a.Local Water Management Strategy;

b.Bushfire Management Plan;

c.Landscape Concept Plan; and

d.The Revised Wetland Buffer Assessment.

6A.Amend the structure plan map to show:

a.at least 10 per cent of the gross subdivisible area of the site to be given up as Public Open Space (in accordance with Liveable Neighbourhoods 2009); and

b.at least 80 per cent of Public Open Space as unrestricted use Public Open Space (in accordance with Liveable Neighbourhoods 2009).

Unrestricted use Public Open Space may be located within the part of the buffer referred to in modification 1 which is more than 30 metres from the 'Indicative CCW Boundary for Planning Purposes' depicted on the structure plan map and is to be fenced on the wetland side of the unrestricted use Public Open Space in accordance with modification 2.

6.Revise the Public Open Space schedule to reflect the inclusion of the ecological linkage and provide further information in relation to the Public Open Space shown on the structure plan as follows:

a.individual concept plans to be provided for each area of unrestricted use Public Open Space, and to include areas and dimensions;

b.precise areas of unrestricted use Public Open Space to be provided, including turf, path, play area and also revegetated connectivity corridor;

c.the retaining wall heights so as to confirm access capabilities to Public Open Space;

d.confirmation of path along road reserve to provide access to Public Open Space area; and

e.confirmation of the irrigation source for the Public Open Space.

7.Modify the proposed road network on the structure plan map as follows:

a.decrease the angle of the proposed laneway to provide improved vehicle access, sightlines and safety, in consultation with the City of Gosnells; and

b.provide a shared path within the road reserve on the side of the road adjacent to the Public Open Space, to avoid increased conflicts between vehicle crossovers and pedestrians.

8.Include a notation on the structure plan map to indicate the following:

A condition requiring the placement of notifications on title may be imposed at subdivision stage for the creation of lots within the 500 metre kennel buffer.

9.Provide a consolidated structure plan amendment document, including:

a.the revised plans referred to in the above modifications, minus the Roberts Day branding on the structure plan map;

b.a revised Part 1 and updated technical appendices in Part 2; and

c.an endorsement page at the front of the document.

10.Include text relating to the site contamination and remediation works to be undertaken in Part 1.

11.Provide a revised Local Water Management Strategy, in accordance with the recommendation of the Department of Water and Environmental Regulation to provide proof of concept for how water issues will be managed and the agreed design principles and strategies will be met.  Include consideration of 5 and 100 year storm water event storage.

12.Provide a revised Bushfire Management Plan, in accordance with the recommendation of the Department of Fire and Emergency Services to ensure bushfire risk can be managed and an appropriate BAL can be achieved for the proposed residential lots.