TWO ROCKS INVESTMENTS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2019] WASAT 59

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   TWO ROCKS INVESTMENTS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 59
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
MS M CONNOR, MEMBER

HEARD:   8, 9, 10, 13, 14, 15, 16, 17 AND 30 MAY 2019 AND 6 JUNE 2019 - FURTHER WRITTEN SUBMISSIONS FILED ON 14 AND 20 JUNE 2019
DELIVERED          :   5 AUGUST 2019
FILE NO/S:   DR 188 of 2016
BETWEEN:   TWO ROCKS INVESTMENTS PTY LTD
ATLANTIS @ TWO ROCKS PTY LTD
NEW ORION (AUST) PTY LTD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Structure plan - Coastal planning - Climate change and consequent sea level rise and other coastal processes - 100-year planning timeframe - Coastal foreshore reserve - 2120 coastal processes line generally located landward of existing coastal foreshore reserve - Structure plan proposes 'Special Use (Coastal) zone' in area of site between existing coastal foreshore reserve and 2120 coastal processes line, to enable private development of that land before it becomes vulnerable to sea level rise and other coastal processes, and 'delayed vesting' involving ceding of that land to the Crown (free of cost and without payment of compensation) when it becomes vulnerable to coastal processes - Structure plan proposes Conservation Public Open Space in part of 2120 coastal foreshore area of site - Whether proposed structure plan is competent and capable of approval insofar as it involves changes to regional reserves and urban development of Bush Forever sites - Whether land reserved under region planning scheme is part of 'an area of land in the [local planning] Scheme area ... [which is] all or part of a zone identified in [the] Scheme as an area suitable for urban or industrial development' under cl 15(a) of the deemed provisions - Whether Western Australian Planning Commission 'considers that a structure plan for the area [including land reserved under region planning scheme] is required for the purposes of orderly and proper planning' under cl 15(c) of the deemed provisions - Whether Tribunal has power under s 29(1) of the State Administrative Tribunal Act 2004 (WA) to exercise Western Australian Planning Commission's function and discretion under cl 15(c) of the deemed provisions - Whether proposed structure plan is appropriate insofar as it involves changes to regional reserves and urban development of Bush Forever sites - Whether proposed 'swap' of area not currently reserved under region planning scheme for area which is currently reserved under region planning scheme is appropriate - Whether proposed structure plan is appropriate in terms of the location and size of coastal foreshore reserve - Whether proposed coastal foreshore reserve will be 'of an appropriate width to ensure a coastal foreshore reserve continues to provide the values, functions and uses prescribed should the coastal processes be realised over the [100-year] planning timeframe' under State Planning Policy 2.6 State Coastal Planning Policy Biodiversity and ecosystem integrity, visual landscape amenity and public access and recreational 'values, functions and uses' of coastal foreshore reserve - Whether proposed structure plan is appropriate in terms of the location of, contemplated uses within, and proposed mechanism for vesting in the Crown of the Special Use (Coastal) zone - Sustainable development - Ecological impact - Impact of development on natural progression of vegetation inland as coast erodes - 'Coastal nodes' within coastal foreshore reserve are a 'variation' in which State Planning Policy 2.6 - State Coastal Planning Policy recognises that 'development may need to occur within an area identified to be potentially impacted by physical coastal processes within the planning time frame [sic]' - Whether two parts of proposed Special Use (Coastal) zone constitute appropriate 'coastal nodes' - Whether 'coastal nodes' may be located on private and zoned land - Mechanism for delayed vesting of Special Use (Coastal) zone - Appropriate 'trigger' for delayed vesting - Whether trigger for transfer of land in brownfield development to public realm '[w]here the most landward part of the Horizontal Shoreline Datum (HSD) is within 40 metres of the most seaward part of a development and/or structure(s) [sic] lot boundary' in planned or managed retreat guidelines adopted by Western Australian Planning Commission provides an appropriate trigger for delayed vesting of land in the Special Use (Coastal) zone Whether consistent with orderly and proper planning for Special Use (Coastal) zone and delayed vesting to be given effect by Deed Tribunal imposed requirement for Special Use (Coastal) zone and delayed vesting to be given effect by local planning scheme within 10 years and otherwise that land is designated as 'coastal foreshore reserve' Whether proposed structure plan is appropriate in terms of location of coastal road - Whether proposed structure plan should provide for transfer of coastal foreshore reserve into public ownership at time of subdivision or development - Nexus - Whether condition of subdivision or development approval requiring coastal foreshore reserve landward of 2120 coastal processes line to be ceded to the Crown free of cost and without any payment of compensation fairly and reasonably relates to subdivision or development - Whether such condition would be legally unreasonable - Duration of approval period for proposed structure plan Whether Tribunal has power to determine that 'another period' than 'a period of 10 years' should be duration of structure plan approval under cl 28(1) of the deemed provisions Whether 'another period' for duration of approval is appropriate Words & phrases: 'coastal node', 'sequential and preferential basis'

Legislation:

City of Wanneroo District Planning Scheme No. 2, cl 2.2.1, cl 3.1.1, cl 3.14, cl 3.14.2(b), cl 3.14.3, cl 3.14.4, Pt 9
Land Administration Act 1997 (WA), s 195, s 196, s 196(2)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2 (deemed provisions), cl 14, cl 15, cl 15(a), cl 15(b), cl 15(c), cl 16, cl 16(1), cl 16(3), cl 17, cl 18, cl 18(1), cl 18(2), cl 19, cl 19(1), cl 20(1), cl 20(2), cl 22, cl 22(1), cl 22(1)(a), cl 22(1)(b), cl 22(1)(c), cl 25, cl 27, cl 27(1), cl 28, cl 28(1), cl 28(3), cl 28(4), cl 29
Planning and Development Act 2005 (WA), s 3(1)(c), s 69, s 69(1)(a), s 87(4), s 135, s 138(1), s 145(1), s 145(2), s 152, s 152(1), s 241(1), s 257B, s 257B(2), s 257B(3), Sch 7, cl 7, cl 9, cl 10, cl 12
State Administrative Tribunal Act 2004 (WA), s 27, s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 29(5), s 29(6), s 32(1), s 73, s 73(1)

Result:

Decision made by Western Australian Planning Commission on 26 April 2016, not to approve North Two Rocks Local Structure Plan No. 91 and to require it to be modified, in accordance with schedule of modifications, and resubmitted with those modifications for approval for a period of 10 years, set aside and decision substituted requiring applicants to modify local structure plan in the manner specified in schedule of modifications with variations to modifications 12, 18, 19, 24, 25 and 26 and resubmitted, modified in that manner, for approval for a period of 15 years.

Summary of Tribunal's decision:

Two Rocks Investments Pty Ltd, New Orion Investments Pty Ltd and Atlantis @ Two Rocks Pty Ltd sought review by the Tribunal of the decision of the Western Australian Planning Commission not to approve the North Two Rocks Local Structure Plan No. 91, but rather to require the landowners to modify the proposed structure plan in terms of a schedule of 29 modifications and resubmit it, modified in that manner, to the Commission for approval for a period of 10 years. The proposed structure plan relates to land with an area of 833.92 hectares located in Two Rocks, at the north-western corner of the Perth Metropolitan Region, approximately 54 kilometres north of the Perth Central Business District. The proposed structure plan envisages a residential community with a population of approximately 27,000 people, commercial centres, public primary and high school sites and regional and public open space. The land adjoins a coastal foreshore reserve and approximately 2.6 kilometres of coastline along the Indian Ocean. Most of the modifications required by the Commission are not in dispute. The dispute relates primarily to the development of the coastal portion of the land.

This case is of significance in relation to coastal foreshore planning in Western Australia in the era of climate change and consequent predicted sea level rise and other coastal processes. The existing coastal foreshore reserve adjoining the land was ceded to the Crown (without compensation) by the former landowner under a condition of subdivision approval in 1997. However, as a result of climate change, over the 100-year planning timeframe adopted in State Planning Policy 2.6 State Coastal Planning Policy (SPP 2.6), the Horizontal Shoreline Datum (which is the seaward shoreline contour representing the peak steady water level under storm activity) is predicted to move landward by up to 165 metres in the northern part, up to 171 metres in the central part and up to 145 metres in the southern part of the land. That is, over the next 100 years, the coastline in the locality of the land is likely to move up to 171 metres landward. Consequently, in 100 years' time, the Indian Ocean is likely to occupy the whole of the existing coastal foreshore reserve adjoining the land and, in addition, approximately 9.93 hectares of the land itself.

This is the first planning case before the Tribunal concerning the proper interpretation and application of provisions of SPP 2.6 as to whether the owner of land in relation to which coastal foreshore reserve has already been ceded to the Crown (without compensation) should be required to designate and cede, on subdivision or development, further land (without compensation) as coastal foreshore reserve:

(a)which is vulnerable to coastal processes over the 100year planning timeframe, to allow for those processes; and
(b)which is not vulnerable to coastal processes over the 100-year planning timeframe, to ensure that the values, functions and uses prescribed for the current foreshore will continue to be available at the end of the planning timeframe.

The landowners recognise that the portion of the land which is vulnerable to coastal processes over the 100-year planning timeframe will ultimately need to be ceded to the Crown. However, they wish to be able to develop and use that land in the interim, as it is only likely to be vulnerable (because of the width of the existing coastal foreshore) in 50 to 70 years' time. The landowners propose the creation of a 'Special Use (Coastal) zone' to facilitate development and use of that land in the interim, with delayed vesting of the land to the Crown (without compensation) when it becomes vulnerable to coastal processes. This case therefore also raises a novel and important issue for coastal planning in Western Australia as to whether, on the proper interpretation and application of the provisions of SPP 2.6, it is appropriate to enable interim retention and use of land, which will become vulnerable to coastal processes, by the landowner, with delayed vesting of that land to the Crown when it becomes vulnerable to coastal processes, and how such a planning outcome could be made workable and enforceable.

The Tribunal determined that a modification imposed by the Commission requiring the structure plan map to show 'an appropriate coastal foreshore reserve inclusive of the allowance for coastal physical processes and land not vulnerable to coastal processes at the end of the planning timeframe' should be affirmed. The Tribunal determined that the portion of the land that will become vulnerable to sea level rise and other coastal processes by 2120 should be designated as 'coastal foreshore reserve', because it is required to allow for coastal processes, with the exception of two distinct and discrete parts of the proposed Special Use (Coastal) zone which the Tribunal determined may appropriately be retained and developed by the landowners as 'coastal nodes' in the interim and only ceded to the Crown when the Horizontal Shoreline Datum reaches 40 metres from that land (if the zone and relevant provisions are incorporated into in a local planning scheme within 10 years).

The Tribunal determined that the proposed structure plan is not appropriate in terms of the provision of coastal foreshore reserve which is not vulnerable to coastal processes over the 100-year planning timeframe, because the coastal foreshore reserve proposed in the structure plan at the end of the planning timeframe in the year 2120 does not adequately provide the values, functions and uses prescribed, in particular biodiversity and ecosystem integrity (ecological), visual landscape amenity, and public access and recreational values, uses and functions, including a district beach and a local beach, which are relevant and appropriate in the circumstances of this case. The Tribunal observed that the clear intent of the coastal planning framework is that, where there is a broad and natural, and continuous, sandy foreshore at present, including beach face and vegetated dunes, as in the circumstances of this case, there should continue to be a sufficiently wide coastal foreshore reserve seaward of urban development at the end of the 100-year planning timeframe to enable the current values, uses and functions of the coastal foreshore reserve to be maintained.

The Tribunal acknowledged that the previous owner of the land ceded the existing coastal foreshore reserve adjoining the site and that it is likely that the designation and cession of an additional coastal foreshore reserve to allow for sea level rise and other coastal processes by 2120 and to ensure that the coastal foreshore reserve remaining in 2120 will continue to provide the values, functions and uses of the current coastal foreshore reserve will involve a significant area of land with a substantial economic impact to the landowners. However, the need to provide additional coastal foreshore reserve is a consequence of climate change and developments in climate science and planning policy since the existing coastal foreshore reserve was ceded and what is required to enable the approximately 27,000 residents of the land to be able to appreciate and enjoy in 2120 similar visual landscape amenity and public access and recreational values, functions and uses, including at a district beach and a local beach, as will be appreciated and enjoyed by the initial incoming population. This will have significant social benefits for the community on the site. The additional coastal foreshore reserve is also required because of the ecological values of the part of the land which will be foreshore in 2120. The Tribunal also said that although there is plainly an economic cost to the landowners in having to cede a substantial area of land for coastal foreshore reserve, the availability of a broad, natural and continuous coastal foreshore reserve is likely to have economic benefits for the landowners in terms of the value of the residential lots which will have the benefit of such a coastal foreshore reserve, not only in the short term, but through the medium and longer term.

The Tribunal also determined that a modification imposed by the Commission requiring that the coastal foreshore reserve be ceded to the Crown, free of cost and at the time of subdivision or development, should be affirmed. The Tribunal determined that a condition of subdivision or development approval for the land requiring the coastal foreshore reserve to be ceded, free of cost and without any payment of compensation by the Crown, at the time of subdivision or development, would fairly and reasonably relate to the subdivision or development permitted and would not be legally unreasonable, and, having regard to the applicable planning policy framework, would be consistent with orderly and proper planning and appropriate. Even though the initial incoming population on the land, and the population over the next half-century or longer, will have access to all or at least some of the currently existing coastal foreshore reserve, ultimately the community on the land, which is facilitated by the granting of subdivision or development approval now, will require the coastal foreshore reserve, which is not vulnerable to coastal processes at the end of the 100-year planning timeframe in the year 2120, for its use and enjoyment as the coastal foreshore.

The Tribunal determined that the Special Use (Coastal) zone, as proposed by the landowners, is not appropriate, because it would essentially 'privatise' a substantial portion of what SPP 2.6 clearly contemplates should generally be public land, and because the ecological expert evidence indicates that the development of most of the Special Use (Coastal) zone would have an adverse environmental impact by inhibiting the natural progression and maintenance of vegetation quality as the coast erodes. However, the Tribunal also determined that a variation of the Special Use (Coastal) zone, limited and located as two distinct and discrete coastal nodes, and modified in the manner set out in the Tribunal’s reasons, would be generally consistent with SPP 2.6 and appropriate. This would enable the landowners to retain in private ownership and develop these two coastal nodes and only have to give up this land to the Crown when the Horizontal Shoreline Datum reaches 40 metres from this land. The Tribunal found that this is an example of an innovative approach to managing coastal hazard risk (which is encouraged by SPP 2.6) and involves sustainable and beneficial use of strategically located coastal nodes, proximate to a local beach and the district beach, achieving the integration and satisfaction of the so-called 'triple bottom line' of economic, social and environmental considerations in planning decision-making. The Tribunal also found that the development of these coastal nodes is likely to be delivered more quickly and efficiently for the benefit of the community if they remain in private ownership than through a Crown leasing process.

The Tribunal determined that the Special Use (Coastal) zone and the provisions of the structure plan in relation to it should not become operative unless and until the zone and the provisions, including the requirement for delayed vesting of the land, and any further provisions necessary to give effect to the zone, are incorporated into an applicable local planning scheme, and that if this does not occur within 10 years after approval of the structure plan by the Commission, then the land in the zone is designated as 'coastal foreshore reserve' (and is to be ceded to the Crown at the time of subdivision or development of the land, together with the rest of the coastal foreshore reserve).

The Tribunal also determined that the proposed structure plan is incompetent and incapable of approval insofar as it proposes that a portion of the land, which is reserved for 'Parks and Recreation' under the Metropolitan Region Scheme, should be zoned 'Centre' and 'Residential', thereby enabling the urban development of that land, and the Tribunal was not satisfied that a so-called 'land swap' of an area in the south-western corner of the land for part of the land which is currently reserved for 'Parks and Recreation' is appropriate.

Finally, the Tribunal determined that it has power to require the landowners to modify the proposed structure plan and resubmit it, modified in that form, to the Commission for approval for a specified period, other than the default period of 10 years, which the Tribunal considers to be appropriate. The Tribunal determined that, in the circumstances of this case, it is appropriate for the proposed structure plan to be approved for a period of 15 years, rather than for the default period of 10 years, but not for a period of 30 years as sought by the landowners.

Category: B

Representation:

Counsel:

Applicants	:	Mr S Penglis SC and Ms R Young
Respondent	:	Mr KM Pettit SC and Mr IA Repper

Solicitors:

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

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR (WA) 311
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36
Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98; (2007) 57 SR (WA) 255
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Ouschan and Western Australian Planning Commission [2007] WASAT 226; (2007) 55 SR (WA) 202
Reid v Western Australian Planning Commission [2016] WASCA 181
Sanders v City of South Perth [2019] WASC 226
Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160
Western Australian Planning Commission and Hogan [2018] WASAT 25
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; (2004) 137 LGERA 232
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508

TABLE OF CONTENTS

Introduction

Legislative framework in relation to structure plans

Site and locality

Proposed structure plan

Reviewable decision and variations sought by applicants in this review

SPP 2.6

The agreed 2120 coastal processes allowance affecting the site ('the Rogers line')

Issues for determination

Is the proposed structure plan competent and capable of approval insofar as it involves changes to regional reserves and urban development of Bush Forever sites?

Is the proposed structure plan appropriate insofar as it involves changes to regional reserves and urban development of Bush Forever sites?

Is the proposed structure plan appropriate in terms of the location and size of coastal foreshore reserve?

SPP 2.6 'the values, functions and uses prescribed'

Coastal foreshore reserve to accommodate impacts of coastal processes

Ecological evidence

Landscape evidence

Planning evidence 'coastal foreshore reserve' vs 'public open space'

Conclusion in relation to issue as to whether the proposed structure plan is appropriate in terms of the location and size of coastal foreshore reserve

Is the proposed structure plan appropriate in terms of the SUCZ?

Is the proposed structure plan appropriate in terms of the location of the coastal road?

Should the proposed structure plan provide for the transfer of coastal foreshore reserve into public ownership at the time of subdivision or development?

Period of approval of proposed structure plan

Conclusion

Orders

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Two Rocks Investments Pty Ltd, New Orion Investments Pty Ltd and Atlantis @ Two Rocks Pty Ltd (applicants) seek review by the Tribunal, under cl 25 of the deemed provisions in local planning schemes set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions),[1] of the decision of the Western Australian Planning Commission (Commission) not to approve the North Two Rocks Local Structure Plan No. 91 (proposed structure plan[2]). The Commission did not refuse to approve the proposed structure plan (under cl 22(1)(c) of the deemed provisions), but rather required the applicants to modify the proposed structure plan in the manner specified by the Commission in a schedule of 29 modifications and resubmit it, modified in that manner, to the Commission for approval (under cl 22(1)(b) of the deemed provisions). In its resolution, the Statutory Planning Committee of the Commission stated that 'following the completion of the modifications, upon approval of the structure plan, the approval shall be valid for a period of 10 years',[3] which is the default period for the duration of a structure plan under cl 28(1) of the deemed provisions. Under cl 28(1) of the deemed provisions, the Commission has discretion to determine that 'another period' than the default period should be the duration of approval of a structure plan.
[1] The deemed provisions in local planning schemes are prescribed in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) made pursuant to s 257B of the Planning and Development Act 2005 (WA).
[2] In these reasons, we refer to the North Two Rocks Local Structure Plan No. 91 as 'the original proposed structure plan' (when referring to it in its form prior to amendment in September 2018) and as 'the proposed structure plan' (when referring to it in its form after amendment in September 2018).
[3] Applicants' amended application and amended grounds of review (Exhibit 7) Appendix 4 page 6.
Twenty-three of the 29 modifications required by the Commission are not in dispute in this proceeding. The decision sought by the applicants in this review is '[v]ariation of the Schedule of Modifications required for approval of the [proposed structure plan]' in relation to six of the modifications and 'variation of the period for which approval of the [proposed structure plan] will be valid'.[4] We will set out the modifications in issue and the variations to the modifications sought by the applicants after reviewing the legislative framework in relation to structure plans and referring to the site and locality and the proposed structure plan.
[4] Further Amended Appendix 1 (Exhibit 48) (which replaced Amended Appendix 1 to Applicants' amended application and amended grounds of review (Exhibit 7)).
This case is of significance in relation to coastal foreshore planning in Western Australia in the era of climate change and consequent predicted sea level rise and other coastal processes. The land in question adjoins a coastal foreshore reserve and approximately 2.6 kilometres of coastline along the Indian Ocean. The coastal foreshore reserve was ceded to the Crown (without compensation) by the former owner of the land under a condition of subdivision approval in 1997. However, as a result of climate change and consequent predicted sea level rise and other coastal processes, over the 100-year planning timeframe adopted in State Planning Policy 2.6 State Coastal Planning Policy (SPP 2.6) (which commenced in its current form in 2013), the Horizontal Shoreline Datum (which is the seaward shoreline contour representing the peak steady water level under storm activity) is predicted, by an agreed assessment prepared by coastal engineers under Sch One of SPP 2.6, to move landward by up to 165 metres in the northern part, 171 metres in the central part and 145 metres in the southern part of the land. That is, over the next 100 years, the coastline in the locality of the land is likely to move up to 171 metres landward. Consequently, in 100 years' time, the Indian Ocean is likely to occupy the whole of the existing coastal foreshore reserve adjoining the land[5] and, in addition, approximately 9.93 hectares of the land itself.
[5] Although a part of the land, which, like the adjoining coastal foreshore reserve, is reserved for 'Parks and Recreation' under the Metropolitan Region Scheme and adjoins the existing coastal foreshore reserve, will not be vulnerable to coastal processes in 100 years.
This is the first planning case before the Tribunal concerning the proper interpretation and application of provisions of SPP 2.6 as to whether the owner of land in relation to which coastal foreshore reserve has already been ceded to the Crown (without compensation) should be required to designate and cede, on subdivision or development, further land (without compensation) as coastal foreshore reserve:
(a)which is vulnerable to coastal processes over the 100year planning timeframe, to allow for those processes; and
(b)which is not vulnerable to coastal processes over the 100-year planning timeframe, to ensure that the values, functions and uses prescribed for the current foreshore will continue to be available at the end of the planning timeframe.
The applicants recognise that the portion of the land which is vulnerable to coastal processes over the 100-year planning timeframe will ultimately need to be ceded to the Crown. However, they wish to be able to develop and use that land in the interim, as it is only likely to be vulnerable (because of the width of the existing coastal foreshore) in 50 to 70 years' time. The landowners propose the creation of a 'Special Use (Coastal) zone' to facilitate development and use of that land in the interim, with delayed vesting of the land to the Crown (without compensation) when it becomes vulnerable to coastal processes. This case therefore also raises a novel and important issue for coastal planning in this State as to whether, on the proper interpretation and application of the provisions of SPP 2.6, it is appropriate to enable interim use of land, which will become vulnerable to coastal processes, by the landowner, with delayed vesting of that land to the Crown, and how such a planning outcome could be made workable and enforceable.

Legislative framework in relation to structure plans

Section 257B(2) of the Planning and Development Act 2005 (WA) (PD Act) states as follows:
Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
The LPS Regs commenced on 19 October 2015. Regulation 10(4) of the LPS Regs states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text.
…
Furthermore, reg 8(1)(c) of the LPS Regs expressly states that:
The documents that comprise a local planning scheme are the following —
…
(c)if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text — those provisions[.]
Part 4 of the deemed provisions in Sch 2 of the LPS Regs concerns structure plans. The term 'structure plan' is defined in cl 14 of the deemed provisions to mean 'a plan for the coordination of future subdivision and zoning of an area of land'. Significantly, in relation to issue 1 in this review, which is whether the proposed structure plan is competent and capable of approval insofar as it involves changes to regional reserves and urban development of Bush Forever sites, cl 15 of the deemed provisions prescribes when a structure plan may be prepared. Clause 15 of the deemed provisions states as follows:
A structure plan in respect of an area of land in the Scheme area may be prepared if —
(a)the area is —
(i)all or part of a zone identified in this Scheme as an area suitable for urban or industrial development; and
(ii)identified in this Scheme as an area requiring a structure plan to be prepared before any future subdivision or development is undertaken;
or
(b)a State planning policy requires a structure plan to be prepared for the area; or
(c)the Commission considers that a structure plan for the area is required for the purposes of orderly and proper planning.
Clause 16 of the deemed provisions concerns the preparation of structure plans. Clause 16(1) and cl 16(3) of the deemed provisions state as follows:
(1)A structure plan must —
(a)be prepared in a manner and form approved by the Commission; and
(b)include any maps, information or other material required by the Commission; and
(c)unless the Commission otherwise agrees, set out the following information -
(i)the key attributes and constraints of the area covered by the plan including the natural environment, landform and the topography of the area;
(ii)the planning context for the area covered by the plan and the neighbourhood and region within which the area is located;
(iii)any major land uses, zoning or reserves proposed by the plan;
(iv)estimates of the future number of lots in the area covered by the plan and the extent to which the plan provides for dwellings, retail floor space or other land uses;
(v)the population impacts that are expected to result from the implementation of the plan;
(vi)the extent to which the plan provides for the coordination of key transport and other infrastructure;
(vii)the proposed staging of the subdivision or development covered by the plan.
…
(3)A person may make an application to the local government for a structure plan prepared by the person in the circumstances set out in clause 15 to be assessed and advertised if the person is —
(a)a person who is the owner of any or all of the land in the area to which the plan relates; or
(b)an agent of a person referred to in paragraph (a).
Clause 17 of the deemed provisions requires the local government to take certain action upon receipt of an application for a structure plan to be assessed and advertised. Clause 17 of the deemed provisions states as follows:
(1)On receipt of an application for a structure plan to be assessed and advertised, the local government —
(a)must consider the material provided by the applicant and advise the applicant in writing —
(i)if the structure plan complies with clause 16(1); or
(ii)if further information from the applicant is required before the structure plan can be accepted for assessment and advertising;
and
(b)must give the applicant an estimate of the fee for dealing with the application in accordance with the Planning and Development Regulations 2009 regulation 48.
(2)The structure plan is to be taken to have been accepted for assessment and advertising if the local government has not given written notice to the applicant of its decision by the latest of the following days —
(a)28 days after receipt of an application;
(b)14 days after receipt of the further information requested under subclause (1)(a)(ii);
(c)if the local government has given the applicant an estimate of the fee for dealing with the application — the day the applicant pays the fee.
Clause 18(1) of the deemed provisions requires the local government to advertise a proposed structure plan. Clause 18(1) of the deemed provisions states as follows:
The local government must, within 28 days of preparing a structure plan or accepting an application for a structure plan to be assessed and advertised —
(a)advertise the proposed structure plan in accordance with subclause (2); and
(b)seek comments in relation to the proposed structure plan from any public authority or utility service provider that the local government considers appropriate; and
(c)provide to the Commission —
(i)a copy of the proposed structure plan and all accompanying material; and
(ii)details of the advertising and consultation arrangements for the plan.
Clause 18(2) of the deemed provisions prescribes the manner in which the local government must advertise a proposed structure plan.
Following advertising of a proposed structure plan, cl 19(1) of the deemed provisions requires the local government to 'consider all submissions made to the local government within the period specified in a notice advertising the structure plan' (par (a)) and confers discretion on the local government to consider submissions made after that time (par (b)), and cl 20(1) of the deemed provisions requires the local government to 'prepare a report on the proposed structure plan and provide it to the Commission'. Clause 20(2) of the deemed provisions states as follows:
The report on the proposed structure plan must include the following —
(a)a list of the submissions considered by the local government, including, if relevant, any submissions received on a proposed modification to the structure plan advertised under clause 19(2);
(b)any comments by the local government in respect of those submissions;
(c)a schedule of any proposed modifications to address issues raised in the submissions;
(d)the local government's assessment of the proposal based on appropriate planning principles; [and]
(e)a recommendation by the local government on whether the proposed structure plan should be approved by the Commission, including a recommendation on any proposed modifications.
Clause 22 of the deemed provisions concerns the decision of the Commission in relation to a proposed structure plan. 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.
Clause 25 of the deemed provisions confers a right of review to the Tribunal as follows:
A person who prepared a structure plan may apply to the State Administrative Tribunal for a review, in accordance with the Planning and Development Act 2005 Part 14, of a decision by the Commission not to approve the structure plan.
As indicated earlier, the Commission's decision in this case was to require the applicants to 'modify the plan in the manner specified by the Commission' and 'resubmit the modified plan to the Commission for approval' (under cl 22(1)(b) of the deemed provisions), not to 'refuse to approve the structure plan' (under cl 22(1)(c) of the deemed provisions). A right of review under cl 25 of the deemed provisions only arises in respect of 'a decision by the Commission not to approve the structure plan'.
The Commission accepts that its decision to require modification and resubmission of the original proposed structure plan is, in effect, a decision 'not to approve the structure plan', for the purposes and within the meaning of cl 25 of the deemed provisions. The Commission, therefore, accepts that the applicants have a right of review in this matter. Unsurprisingly, the applicants agree with the Commission's position in this regard.
In our view, on its proper interpretation, cl 25 of the deemed provisions confers a right of review not only in relation to a decision of the Commission to 'refuse to approve [a] structure plan' (under cl 22(1)(c) of the deemed provisions), but also in relation to a decision of the Commission to require the person who prepared a proposed structure plan to 'modify the plan in the manner specified by the Commission' and 'resubmit the modified plan to the Commission for approval' (under cl 22(1)(b) of the deemed provisions). This is because the expression 'not to approve the structure plan' in cl 25 of the deemed provisions is not the same as the expression 'refuse to approve the structure plan' in cl 22(1)(c) of the deemed provisions and the expression 'not to approve the structure plan' includes both an outright refusal to approve a structure plan and requiring a structure plan to be modified in the manner specified by the Commission and resubmitted for approval. Furthermore, the expression 'not to approve the structure plan' in cl 25 of the deemed provisions is plainly used in contradistinction to the expression 'approve the structure plan' in cl 22(1)(a) of the deemed provisions. Thus, the clear intention of cl 25 of the deemed provisions, apparent from both its grammatical meaning and by reference to context, is to confer a right of review of decisions under both cl 22(1)(b) and cl 22(1)(c) of the deemed provisions.

As indicated in the following section of these reasons, the land which is the subject of the proposed structure plan is zoned 'Urban Development' under the City of Wanneroo District Planning Scheme No. 2 (DPS 2 or Scheme).[6] At the time when the proposed structure plan was prepared (in 2011-2012), advertised for public comment by the City of Wanneroo (City or Council) (in May and June 2013), adopted by the Council subject to modifications (in March 2014) and forwarded (modified, as required by the Council) to the Commission for consideration (pursuant to Pt 9 of DPS 2), the Scheme provided that a structure plan, once operational, would have the force and effect of the Scheme.[7] Section 87(4) of the PD Act states as follows:
A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act.
[6] As indicated in the following section of these reasons, the applicants' land at Lot 14 Lisford Avenue and Lot 206 Shearwater Avenue, Two Rocks also includes a 12.9 hectare area which is reserved for 'Parks and Recreation' under the Metropolitan Region Scheme and which, because of its shape, is referred to in the evidence and in the parties' submissions, and hence in these reasons, as 'the bulge'. For reasons given in relation to issue 1, the bulge does not form part of the area of land which is the subject of the proposed structure plan under cl 15 of the deemed provisions.
[7] Applicants' substituted statement of issues, facts and contentions dated 21 December 2018 (Exhibit 6) [6(a)].
Thus, had the original proposed structure plan been approved by the Commission under Pt 9 of DPS 2 prior to the commencement of the deemed provisions on 19 October 2015, the structure plan would have had force and effect as binding planning legislation.
In contrast, cl 27(1) of the deemed provisions states as follows:[8]
A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.
[8] Emphasis added.
Section 257B(3) of the PD Act states as follows:
If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
In consequence of s 257B(3) of the PD Act, as the requirement of cl 27(1) of the deemed provisions (that a decision-maker 'is to have due regard to, but is not bound by, the structure plan') is inconsistent with the provisions of DPS 2 which provided that a structure plan, once operational, would have the force and effect of the Scheme, cl 27(1) of the deemed provisions prevailed over the provisions of the text of the Scheme. The text of the Scheme was amended on 15 July 2016, following the commencement of the deemed provisions. In particular, cl 3.14.3 and cl 3.14.4 of DPS 2 now state as follows:[9]
3.14.3Subject to Clause 27 of the deemed provisions, no subdivision (including strata or survey strata subdivision) or other development should be commenced or carried out in an Urban Development Zone until a Structure Plan has been prepared and adopted under the provisions of Part 4 of the deemed provisions. No subdivision (including strata or survey strata subdivision) should be commenced or carried out and no other development shall be commenced or carried out otherwise than in conformity with a Structure Plan which is in existence at the time the application for approval of the subdivision or other development is received by the responsible authority[.]
3.14.4The permissibility of uses in the Urban Development Zone subject to Clause 27 of the deemed provisions shall be determined in accordance with the provisions of the relevant Structure Plan.
[9] Respondent's section 24 bundle (Exhibit 11.1) tab 4 page 88. Although we make no determination in relation to whether these clauses are inconsistent with cl 27(1) of the deemed provisions, as that was not the subject of submissions and the City is not a party to this proceeding, we observe that there is certainly an issue as to whether, notwithstanding the proviso in the first sentence of cl 3.14.3 and in cl 3.14.4 of DPS 2 ('[s]ubject to Clause 27 of the deemed provisions'), these provisions are inconsistent with cl 27(1) of the deemed provisions. Under cl 27(1) of the deemed provisions, the planning consent authority 'is to have due regard to, but is not bound by, the structure plan'. In contrast, the second sentence of cl 3.14.3 of DPS 2 arguably purports to make the provisions of a structure plan binding and cl 3.14.4 of DPS 2 arguably purports to elevate land use provisions in a structure plan to having legislative effect, whereas under cl 27(1) of the deemed provisions, they can only ever be matters to which 'due regard' is given and cannot be binding.
Clause 28 of the deemed provisions concerns the duration period of an approved structure plan and states as follows:[10]
[10] Original emphasis.
(1)The approval of a structure plan has effect for a period of 10 years commencing on the day on which the Commission approves the plan, or another period determined by the Commission, unless —
(a)the Commission earlier revokes its approval; or
(b)an amendment to the Scheme that covers the area to which the structure plan relates takes effect in accordance with section 87 of the Act.
(2)For the purposes of subclause (1), a structure plan that was approved before the day referred to in the Planning and Development (Local Planning Schemes) Regulations 2015 regulation 2(b) (commencement day) is to be taken to have been approved on commencement day.
(3)The Commission may extend the period of approval of a structure plan if there are no changes to the terms of the plan or the conditions attached to the approval.
(4)The Commission may revoke its approval of a structure plan if the Commission considers that the structure plan cannot be effectively implemented because of a legislative change or a change in a State planning policy.
Finally, in terms of our survey of the legislative framework in relation to structure plans, cl 29 of the deemed provisions enables amendment of a structure plan in the following terms:
(1)A structure plan may be amended by the Commission at the request of the local government or a person who owns land in the area covered by the plan.
(2)The procedures for making a structure plan set out in this Part, with any necessary changes, are to be followed in relation to an amendment to a structure plan.
(3)Despite subclause (2), the local government may decide not to advertise an amendment to a structure plan if, in the opinion of the local government and the Commission, the amendment is of a minor nature.
(4)An amendment to a structure plan does not extend the period of approval of the plan unless, at the time the amendment is approved, the Commission agrees to extend the period.

Site and locality

The proposed structure plan relates to the applicants' land at Lot 14 Lisford Avenue[11] and Lot 206 Shearwater Avenue,[12] Two Rocks (site). The site has a total area of approximately 833.92 hectares and comprises currently undeveloped land consisting of coastal dune formations and coastal and other native vegetation.
[11] Lot 14 on Deposited Plan 39563 being the land in Certificate of Title Volume 2582 Folio 596.
[12] Lot 206 on Plan 21922 being the land in Certificate of Title Volume 2098 Folio 913.
The site is located within the district of the City, at the north-western corner of the Perth Metropolitan Region, approximately 54 kilometres north of the Perth Central Business District and approximately 7 kilometres north of the (future) Yanchep City Centre. The site adjoins an existing coastal foreshore reserve (Reserve 45379) and approximately 2.6 kilometres of coastline along the Indian Ocean to the west, the Wilbinga Nature Reserve to the north, generally undeveloped land, which is the subject of the East Two Rocks Local Structure Plan No. 83 (approved by the Commission in April 2013), to the east, and undeveloped land, which is the subject of the Two Rocks Local Structure Plan No. 69 (approved by the Commission in January 2013), to the south.
Reserve 45379, which adjoins the site to the west, varies in width from approximately 100 metres to 170 metres, and was reserved for 'Parks and Recreation' under the Metropolitan Region Scheme (MRS) in 1996 by MRS Amendment No. 975/33. MRS Amendment No. 975/33 also reserved a 12.9 hectare portion of the site, which, because of its shape, is referred to in the evidence and submissions, and hence in these reasons, as 'the bulge', and which adjoins Reserve 45379 for approximately 550 metres, for 'Parks and Recreation' under the MRS. The bulge extends for approximately 550 metres eastward, into the site, and narrows as it does so.
MRS Amendment No. 975/33 rezoned the site (other than the bulge) from 'Rural' to 'Urban Deferred' under the MRS. In May 2010, the urban deferral was lifted by the Commission and the site (other than the bulge) is now zoned 'Urban' under the MRS.[13] As indicated earlier, the site (other than the bulge) is zoned 'Urban Development' under DPS 2.
[13] Respondent's section 24 bundle (Exhibit 11.2) tab 26 page 1165.
Clause 3.14 of DPS 2 sets out the 'purpose' and the 'objectives' of the Urban Development zone as follows:[14]
3.14.1The purpose of the Urban Development Zone is to provide for the orderly planning and development of larger areas of land in an integrated manner within a regional context whilst retaining flexibility to review planning with changing circumstances. In considering applications for development and changes to residential density codings in areas near existing and proposed future railway stations the Local government will have due regard to the desirability of higher residential densities, transit related development and good pedestrian and vehicular access to stations in order to promote public transport usage.
3.14.2The objectives of the Urban Development Zone are to:
(a)designate land for future urban development;
(b)provide for the orderly planning of large areas of land for residential and associated purposes through a comprehensive structure planning process;
(c)enable planning to be flexible and responsive to changing circumstances throughout the developmental stages of the area.
[14] Respondent's section 24 bundle (Exhibit 11.1) tab 4 page 88.
On the DPS 2 Scheme Map, the bulge (and Reserve 45379) is shown as reserved for 'Parks and [R]ecreation' under the MRS.[15] The bulge is neither zoned nor reserved under DPS 2. In September 2010, the bulge (and Reserve 45379) was included as 'Bush Forever' under MRS Amendment No. 1082/33 and constitutes Bush Forever site 397.
[15] Respondent's section 24 bundle (Exhibit 11.2) tab 28 page 1167.
The site forms part of the area the subject of the Two Rocks District Structure Plan (DSP), which encompasses approximately 7,700 hectares of land between the existing townsite of Yanchep to the south and the northern boundary of the Perth Metropolitan Region. As Mr Cameron Leckey, a town planner with 16 years' experience and the 'co-author' of the original proposed structure plan and the 'author' of the amendments made to the proposed structure plan in September 2018,[16] who was called to give evidence by the applicants, said in his witness statement, '[t]he purpose of the DSP is to provide the strategic land use framework to guide subsequent planning and development within the Yanchep - Two Rocks area'.[17]
[16] ts 401, 14 May 2019.
[17] Statement of Cameron Robert Leckey (Exhibit 32) [45].
The DSP shows a number of Centres located partly or wholly on the site, namely a significant portion of the Two Rocks Secondary Centre (Centre B), a District Centre (Centre F), two Neighbourhood Centres (Centre G and Centre H) and a Coastal Activity Centre (Centre R). The DSP refers to 'Coastal Activity Centres' as 'specialised centres', with a focus on 'tourism related retail above the conventional retail designated for each centre'.[18]
[18] Respondent's section 24 bundle (Exhibit 11.1) tab 13 page 775.
In terms of coastal amenities and facilities, the DSP identifies a coastal foreshore reserve forming the western boundary of the proposed structure plan area, ranging in width from approximately 100 metres to 550 metres, aligning with the current MRS Parks and Recreation reserve. The DSP also identifies a district beach and two local beaches within the coastal foreshore reserve adjoining the site. The district beach, which is identified on Figure 17 of the DSP as 'Durrs Beach' and nominated as a 'surf break', is located approximately in the centre of the coastal foreshore reserve adjoining the site and to the south of Centre R and a 'possible future marina'.[19] Figure 17 of the DSP also shows local beaches in the coastal foreshore reserve adjoining the northern and southern parts of the proposed structure plan area. The northern local beach is identified on Figure 17 of the DSP as a 'proposed future dog exercise beach'.[20]
[19] Respondent's section 24 bundle (Exhibit 11.1) tab 13 page 725.
[20] Respondent's section 24 bundle (Exhibit 11.1) tab 13 page 725.
The existing coastal foreshore reserve which adjoins the site and now forms part of Reserve 45379 was ceded to the Crown (free of cost and without any payment of compensation) by Tokyu Corporation, the applicants' predecessor in title, in 1997, in accordance with a condition of the subdivision approval which created the lots forming the site. However, the bulge was not required to be ceded as a condition of subdivision approval. Rather, the bulge was referred to in cl 2.5 of a Deed in relation to infrastructure contributions, land vestings and road constructions, dated 20 June 1996, between Tokyu Corporation and the Commission, which states as follows:[21]
Tokyu confirms its undertaking to vest in favour of the WAPC such land, within the Additional Coastal Reserve (as is shaded in red on Plan 1) as is designated by the WAPC as appropriate and necessary to be included within the parks and recreation [sic] (coastal foreshore) reserve following the conclusion of detailed planning to verify the appropriate boundaries of the parks and recreation [sic] (coastal foreshore) reserve.

Proposed structure plan

[21] Respondent's section 24 bundle (Exhibit 11.2) tab 36 page 1335.

The proposed structure plan comprises three parts, namely Part 1 'Statutory Report', Part 2 'Explanatory Report' and Part 3 'Technical Appendices', as well as the structure plan map. Mr Leckey and his colleagues at CLE Town Planning + Design commenced preparation of the structure plan in June 2011. On 1 February 2013, the proposed structure plan was submitted to the City under (now superseded) provisions in Pt 9 of DPS 2. On 7 May 2013, the City advertised the proposed structure plan for public comment for a period of 42 days. A total of 10 submissions were received from referral agencies and government departments. On 4 March 2014, the original proposed structure plan was adopted by the City, subject to a range of modifications.
Following the decision of the Commission in relation to the original proposed structure plan on 26 April 2016 (which is referred to in the following section of these reasons) and the commencement of the application for review in this proceeding on 15 June 2016, in September 2018, the Tribunal granted leave to the applicants to amend the original proposed structure plan. In these reasons, we refer to the North Two Rocks Local Structure Plan No. 91 as 'the original proposed structure plan' (when referring to it in its form prior to amendment in September 2018) and as 'the proposed structure plan' (when referring to it in its form after amendment in September 2018).
The proposed structure plan map[22] is reproduced as Attachment A to these reasons. A side-by-side comparison of the original proposed structure plan map (left side) and the (amended) proposed structure plan map (right side), showing the western half of the proposed structure plan area and the adjoining existing coastal foreshore reserve,[23] is reproduced as Attachment B to these reasons. Mr Leckey summarised the principal elements of the proposed structure plan as follows:[24]
[22] North Two Rocks Local Structure Plan dated 10 September 2018 (Exhibit 1).
[23] North Two Rocks Structure Plan comparison dated 6 May 2019 (Exhibit 3).
[24] Statement of Cameron Robert Leckey (Exhibit 32) [149][150].
The [proposed] structure plan provides a framework for the creation of:
•A total of approximately 10,000 residential lots and approximately 11,500 dwelling units. Higher residential densities of R80-R100 are focused around the Two Rocks Secondary Centre, as well as the District and Coastal activity centres, and key areas of open space. Higher densities are also identified adjacent to the neighbourhood and local centres, while the balance of the amended structure plan area will comprise of more traditional medium density housing of R25-R60.
•A separate Centre zone over the Secondary Centre, District Centre F, and Coastal Activity Centre R, recognising the need for further detailed planning over these areas in the form of an Activity Centre Plan in order to ensure that the Centres provide the employment, retail, community and recreation opportunities envisaged by the Yanchep - Two Rocks District Structure Plan.
•Two Neighbourhood Centres in the north-west (Centre H) and north[-]east (Centre G) precincts of the amended structure plan, with retail floor space of approximately 3,700m² and 7,500m²respectively.
•Four Local Centres, strategically located on suitable local distributors and adjacent to primary schools and other local attractors. Retail floor space ranges from 300m² - 1800m².
•Seven public Primary School sites of 3.5 ha - 4ha.
•Two public High School sites of l0ha each, co-located with district (8.5ha) and regional (30ha) active open space respectively.
•A 30ha area of future Regional Open Space adjacent to the northern boundary of the structure plan area.
•A Central Transit Corridor connecting the Secondary Centre, District Centre F, and Coastal Activity Centre R, providing a rapid bus transit service and future opportunities for light rail. Key local services, employment and community uses such as schools, centres, commercial and open space are located along this spine, connecting strategic uses and making it a mixed use environment.
•A hierarchy of district distributors and neighbourhood connectors, providing a framework for the provision of a local bus service, as well as walking and cycling. The road network is fully integrated with the planned road network as determined in the adjoining East Two Rocks and Two Rocks structure plans.
The [proposed] structure plan also provides for the following elements, which are different from the [original] structure plan considered by the WAPC:
•A 6.7 hectare area of future MRS Foreshore Reserve in the south western corner of the structure plan area.
•Approximately 68 hectares of strategic public open space, which I consider provides for a range of strategic conservation and active recreation objectives in accordance with Liveable Neighbourhoods and the City of Wanneroo's policies. The [proposed] structure plan provides that the balance of public open space will comprise of non-strategic open space (such as local and neighbourhood parks), the size and location of which will be determined at subdivision stage.
•An area adjacent to the current MRS Parks and Recreation (foreshore) Reserve that has been identified as being vulnerable to coastal processes within the planning timeframe in accordance with SPP 2.6 ("coastal processes allowance"). The coastal processes allowance is consistent with the 2015 assessment undertaken by MP Rogers and Associates.
•Incorporation of a Special Use (Coastal) Zone within the coastal processes allowance, along with corresponding development control provisions, in order to facilitate interim use of the land within the 100 year planning timeframe, and provide a framework for a 'rolling' setback.
•A foreshadowing of a future MRS Amendment to rezone the easternmost portion of the bulge to Urban zone through the identification of a portion of Coastal Centre R, and a mediumhigh density residential precinct in place of the reserved portion.

The proposed Special Use (Coastal) zone (SUCZ), which is referred to by Mr Leckey in the second-last bullet point in the evidence set out in the preceding paragraph, is to be located on land which is currently zoned 'Urban' under the MRS and 'Urban Development' under DPS 2 and is seaward of the line now agreed between the parties as the extent of land within the site which will become vulnerable to coastal physical processes within the 100year planning timeframe, as a result of climate change and consequent sea level rise and other coastal processes, as determined under Sch One of SPP 2.6. Mr Leckey explained that the proposed structure plan adopts the 'Special Use' zoning, because it is a zone used for the classification of land within the Scheme Area under cl 3.1.1 of DPS. As Mr Leckey also explained:[25]
[25] Statement of Cameron Robert Leckey (Exhibit 32) [153][154].
In the same manner that the Special Use zone in DPS 2 sets out specific land use controls and development standards via a schedule to the Scheme, the [proposed] structure plan sets out specific land use controls and development standards for the Special Use (Coastal) Zone within the Implementation Section of the structure plan.
Key elements of these provisions include:
•A requirement for a more detailed Foreshore Management Plan, including a Coastal Hazard Risk Management and Adaptation Plan, as a condition of subdivision approval of the land adjoining the Special Use (Coastal) Zone, and a detailed schedule of matters to be included in the Foreshore Management Plan such as public access, parking, and conservation areas.
•A general presumption against any further subdivision within the Special Use (Coastal) Zone.
•Land use permissibility within the Special Use (Coastal) Zone is by exception, with all land uses prohibited except for a limited range of low impact, non-habitable land uses, which are required to be considered in the context of Part 7 of Schedule 1 to SPP 2.6.
•A requirement that all buildings within the Special Use (Coastal) Zone are readily capable of removal and / or relocation, or designed to adapt to or withstand coastal processes.
•A requirement to provide sufficient indemnity to the City of Wanneroo to ensure the City is not liable for any loss or damages arising as a result of coastal processes.
•A requirement that all development approvals are limited to a maximum term of 30 years.
•A requirement that the Coastal Processes Setback is monitored and reviewed in the event that there is any change to the applicable science or policy framework associated with coastal hazards, or any change to the physical characteristics of the coast, such as the construction of a marina.
Although the proposed structure plan does not presently contain any such provision, in the evidence of Mr Leckey and in the submissions made to the Tribunal on behalf of the applicants, the applicants propose that there should be 'delayed vesting' of the land in the SUCZ to the Crown, free of cost and without any payment of compensation by the Crown, when that land becomes vulnerable to coastal physical processes.
The provisions of the proposed structure plan in relation to the SUCZ, including the '[k]ey elements' referred to by Mr Leckey,[26] are contained in clause 6.6 of Part 1 of the proposed structure plan. This section, as currently proposed, was drafted by way of modification to the original proposed structure plan by officers of the City. In the planning report on the original proposed structure plan to the Ordinary Council Meeting on 4 March 2014, at which the Council adopted the proposed structure plan, subject to modifications, the City's Director, Planning and Sustainability said that the City's officers did not consider that the land within the proposed SUCZ 'should be ceded free of cost simply due to a long standing [sic] practice, particularly where there is an opportunity for the landowner to develop the land in accordance with the process outlined in SPP 2.6'.[27] However, the City's officers did not consider that the proposed structure plan 'adequately responds to the requirements of SPP 2.6'[28] and, consequently, they redrafted clause 6.6. The planning report recommended that the Council should require the proposed structure plan to be modified in the manner drafted by its officers.
[26] Statement of Cameron Robert Leckey (Exhibit 32) [154].
[27] Applicants' bundle (Exhibit 12) tab 5 page 266.
[28] Applicants' bundle (Exhibit 12) tab 5 page 267.
The City has generally supported the SUCZ, including its retention in private ownership until it is directly affected by coastal processes, since the proposal was first presented over eight-and-a-half years ago. In a letter to CLE Town Planning + Design dated 12 November 2012, which addressed the applicants' proposal before the original proposed structure plan was submitted to the City, the City's Director, Planning and Sustainability said the following:[29]
…
The City is generally supportive of the approach outlined in your letter in seeking to retain the urban zoned portion of the Physical Processes Setback (PPS) in private ownership, providing that appropriate zoning and planning controls are in place to ensure the land is suitably protected from coastal processes for the next 100 years.
[29] Applicants' bundle (Exhibit 12) tab 6 page 392.
The report of the City's Director, Planning and Sustainability to the Ordinary Council Meeting on 4 March 2014 includes the following in relation to the SUCZ:[30]
[30] Applicants' bundle (Exhibit 12) tab 5 pages 266-267.
Physical Processes Setback
Approximately seven hectares of land on the western boundary of Lot 14 has been identified as falling within the 'Physical Processes Setback' (PPS), as defined by the WAPC's SPP 2.6. SPP 2.6 does not preclude development within the PPS, however, it requires development to be considered within a coastal hazard risk management and adaptation planning process. Development should only proceed once adequate management and adaptation planning measures, which accord with SPP 2.6, have been agreed. Applications for development within the PPS must demonstrate that the proposal can be considered within one of these circumstances which are: public recreation facilities with a finite lifespace; coastally dependent and easily relocated development; Department of Defence; Industrial and commercial development; Coastal nodes; and Surf lifesaving clubs.
LSP 91 proposes to zone the land within the PPS as a 'Special Use (Coastal)' zone and put in place suitable development controls which will allow the land to be used within the 100 year planning timeframe as described by SPP 2.6. The intention is for the land to remain in private ownership, to allow the landowners to develop the land and realise some value within the 100 year planning timeframe. The concept of a 'Special Use (Coastal)' zone where land remains in private ownership is new and has not previously been proposed in the City of Wanneroo.
In previous correspondence with the applicant, and in its submission to the City on LSP 91, the WAPC advised that it does not support the tenure, zoning and development of land within the PPS, and considers the land should be ceded to the Crown free of cost consistent with long standing practice. The WAPC did, however, acknowledge that SPP 2.6 does not preclude development within the PPS, subject to a coastal hazard risk management and adaptation planning process being followed. Administration does not agree the land within the PPS should be ceded free of cost simply due to a long standing practice, particularly where there is an opportunity for the landowner to develop the land in accordance with the process outlined in SPP 2.6. The WAPC's position not to support the tenure, zoning and development of land within the PPS is contrary to the provisions of SPP 2.6, which does entertain the idea of development within the PPS as being acceptable.
In written correspondence to the proponent in November 2012, prior to submission of LSP 91, the Director, Planning and Sustainability advised that whilst the City was generally supportive of the proposal to retain the portion of 'Urban' zoned land within the PPS for private development, appropriate zoning and planning controls would be necessary to ensure the land is suitably protected from coastal processes over the next 100 years. Accordingly, LSP 91 identifies discretionary land uses within the 'Special Use (Coastal)' zone, and contains provisions which require sufficient indemnification to the City against loss or damages arising from coastal processes, including title search, erosion, sea level rise and the like. Under the proposed LSP provisions, proponents must demonstrate that any buildings proposed are readily capable of removal and relocation, or designed so as to adapt to/withstand temporary rising flood waters caused by sea level rise.
In addition, LSP 91 proposes to limit the term of planning approval within the 'Special Use (Coastal)' zone to thirty years with any extensions to this timeframe subject to application and further consideration by Council.
Currently, LSP 91 does not contain any commitment to following a coastal hazard risk management and adaptation planning process for development in the 'Special Use (Coastal)' zone. In this regard, Administration does not consider LSP 91 adequately responds to the requirements of SPP 2.6. Administration has therefore recommended a modification to require preparation of a Coastal Hazard Risk Management and Adaptation Plan in accordance with SPP 2.6, as part of a Foreshore Management Plan, which will be required as a condition of subdivision.
Furthermore, Administration does not consider LSP 91 adequately demonstrates the proposed land uses within the 'Special Use (Coastal)' zone can be considered in accordance with SPP 2.6. Accordingly, Administration has recommended that additional text is inserted into the statutory provisions of LSP 91 to require proponents wishing to develop within the PPS, to demonstrate the proposed land use can be considered within the circumstances identified by SPP 2.6, at the time of application for planning approval under DPS 2.
Administration is satisfied that recommended modifications relating to the 'Special Use (Coastal)' zone respond to the requirements of SPP 2.6 and will ensure development within this zone is only considered following an appropriate coastal hazard risk management and adaptation planning process.
The Council accepted its Director, Planning and Sustainability's recommendation and resolved that the original proposed structure plan is satisfactory, subject to modifications, including the modification of cl 6.6 in the terms drafted by the Council's officers.
Thus, the City supports the SUCZ. However, the City noted that the concept of the SUCZ, in which land which will become vulnerable to coastal processes is to remain in private ownership until that time, is 'new and has not previously been proposed in the City of Wanneroo'.[31] As the City's Director, Planning and Sustainability said in the letter on 12 November 2012, and referred to again in the planning report for the meeting on 4 March 2014, 'appropriate zoning and planning controls [are] necessary to ensure the land is suitably protected from coastal processes'.[32] As discussed below, appropriate provisions in the applicable local planning scheme are also necessary to ensure that the zoning and planning provisions regulating the SUCZ and the delayed vesting of the land in the Crown are workable and enforceable.
[31] Applicants' bundle (Exhibit 12) tab 5 page 266.
[32] Applicants' bundle (Exhibit 12) tab 5 page 266.
The original proposed structure plan was subsequently modified by the applicants as required by the Council.

Reviewable decision and variations sought by applicants in this review

On 26 April 2016, the Statutory Planning Committee of the Commission resolved as follows:[33]
That the Statutory Planning Committee resolves to:
1.note the North Two Rocks Local Structure Plan is not consistent with State Planning Policy 2.6 State Coastal Planning Policy;
2.require that the North Two Rocks Local Structure Plan No. 91, dated June 2014, be modified in accordance with the schedule of modifications appended as Attachment 6 before final approval is given; and
3.following the completion of the modifications, upon approval of the structure plan, the approval shall be valid for a period of 10 years.
[33] Applicants' amended application and amended grounds of review (Exhibit 7) Appendix 4 pages 5-6.
The 'schedule of modifications' comprises 29 modifications required by the Commission. As indicated earlier, 23 of the modifications are not in dispute. In this review, the applicants seek variations in relation to six modifications required by the Commission, namely modifications 18, 19, 24, 25, 26 and 29. Ultimately, the parties were in agreement that the applicants' proposed variation to modification 26 (namely, its deletion and replacement with proposed modification 26A) should be made in this review.
The modifications in relation to which the applicants seek variations in this review are as follows:[34]
[34] Respondent's section 24 bundle (Exhibit 11.1) tab 2 pages 21, 23 and 24 (original emphasis).
…
18.Clause 6.6 relating to the 'Special Use (Coastal) Zone' and all associated subclauses to be deleted in their entirety.
19.Insert a new Clause 6.6 titled 'Foreshore Reserve' and include the following text:
"The coastal foreshore reserve as identified on the Structure Plan Map is to be ceded free of cost at the time of subdivision or development in accordance with State Planning Policy 2.6- State Coastal Planning Policy"
…
24.Plan A Structure Plan Map being replaced with the plan shown in Attachment A to this Schedule, date stamped 12 October 2015, and further modified as follows:
a)Depict the 'coastal processes allowance' as determined by the MP Rogers North Two Rocks Coastal Processes Assessment (June 2015).
b)Provide for an appropriate coastal foreshore reserve inclusive of the allowance for coastal physical processes and land not vulnerable to coastal processes at the end of the planning timeframe, in accordance with State Planning Policy 2.6 State Coastal Planning Policy and associated Guidelines to the satisfaction of the WAPC.
c)Remove the Special Use (Coastal) zone.
d)Clearly depict a continuous 'indicative coastal road' along the entire foreshore interface of the LSP area, to the east of the accepted 'coastal processes allowance'.
e)'Special Transit Boulevard Route' to be annotated more clearly than it is currently shown on the map.
f)For context purposes, include an annotation to the north of the LSP area to show that this adjoining land is the Wilbinga Reserve. Also, include annotations to make reference to the adjoining structure plans to the east and to the south of the LSP area (i.e. 'East Two Rocks Local Structure Plan No.83' and 'Two Rocks Local Structure Plan No.69').
g)Modify the Legend as follows:
i)Commercial zone currently indicates a density range of R20-R60. This density is considered too low and should be amended accordingly. A minimum of R60 density is considered appropriate, so R60-R100 is recommended.
ii)Remove 'Special Use (Coastal)' from the identified zones.
iii)'Strategic Public Open Space' to be replaced with 'Public Open Space' to be consistent with Liveable Neighbourhoods terminology.
(iv)Remove reference to 'Indicative Special Transit Boulevard Route' and replace with 'Special Transit Boulevard'.
h)Remove notes 1, 3, 5 and 8 from the 'Notes' section and modify Note 4 to remove reference to "and will be acquired by the WAPC pursuant to the LSP''.
25.Text and wording modifications required in Part One are to be reflected in Part Two, to ensure consistency, including:
a)Update Section 2.6.1 to reflect Modifications 18 and 24(a) to (c) of this Schedule along with the updated North Two Rocks Coastal Processes Assessment dated June 2015 and prepared by M.P. Rogers & Associates. Remove all references to the 'Special Use' zone.
b)Remove 3.3.6 relating to Residential Design Codes: Variations to Development Standards
26.Replace Table 8 'North Two Rocks Strategic Public Open Space Schedule', with the new Table 8 shown in Attachment B to this Schedule.
…
29.In addition to any requirement for Part 3 to be updated to reflect any of the above Modifications of this Schedule, Appendix 5 'Coastal Hazard Risk Assessment' and Appendix 6 'Foreshore Management Strategy' to be updated to reflect Modifications 18, 24(a) to (c) and 25(a) above.
In this review, the applicants seek the following:[35]
[35] Further Amended Appendix 1 (Exhibit 48) [29D].
The Applicants seek the reviewable decision be varied so as to provide that approval shall be valid for a period of 30 years (in lieu of 10 years) as well as the following variations to the Schedule of Modifications:
(a)Delete Modifications 18,19, 24, 25, 26 and 29.
(b)Replace Modification 24 with the following Modification:
Plan A Structure Plan Map being replaced with the Modified LSP Map at Appendix 7 of the Applicants' Amended Application dated 25 September 2018.
(c)Replace Modification 25 with the following Modification:
Text and wording modifications required in Part One are to be reflected in Part Two, to ensure consistency, including:
(a)Update Section 2.6.1 to reflect Modification 24 of this Schedule along with the MP Rogers North Two Rocks Coastal Processes Assessment dated October 2015;
(b)Remove Section 3.3.6 relating to Residential Design Codes: Variations to Development Standards.
(c)Replace Modification 29 with the following Modification:
In addition to any requirement for Part 3 to be updated to reflect any of the above Modifications of this Schedule, Appendix 5 'Coastal Hazard Risk Assessment' and Appendix 6 'Foreshore [M]anagement Strategy' to be updated to reflect Modifications 24 and 25 above.
(d)Insert the following additional Modifications:
19A.Update Clause 6.6.6 in Part One to include the following text:
'In the event that the monitoring and review process identifies that the Special Use (Coastal) Zone, or a portion of the zone is currently impacted by coastal processes and is no longer suitable to accommodate the approved use or development, then the affected portion shall be transferred to the Crown and vested as foreshore reserve at the conclusion of the development approval period free of cost without any payment of compensation by the Crown.'
24A.Part One to be updated to reflect the proposed transfer of foreshore reserve depicted in the Modified LSP Map at Appendix 7 of the Applicants' Amended Application dated 25 September 2018 and to include the following text:
'An amendment to the Metropolitan Region Scheme is required in order to modify the foreshore reserve as depicted in Plan A.'
26A.POS Schedules and associated text and figures in Part One and Part Two to be provided in the proforma in Liveable Neighbourhoods 2009 and updated to reflect the POS areas as depicted in Plan A.
As indicated earlier, it is common ground between the parties that modification 26 should be deleted and replaced with proposed modification 26A requiring that 'POS' (that is, public open space) schedules, text and figures are to be provided in the manner set out in Liveable Neighbourhoods - A Western Australian Government Sustainable Cities Initiative (Liveable Neighbourhoods). However, as discussed in relation to issue 3 below, there is a disagreement between the expert town planning witnesses and a dispute between the parties as to whether an area designated in the proposed structure plan as 'public open space' and envisaged to comprise facilities and amenities for the district beach (POS U) and areas designated in the proposed structure plan as 'Conservation Public Open Space' (POS Q, POS R, POS S and POS T) should properly be designated as 'coastal foreshore reserve', rather than as 'public open space'.

In our view, s 29(5) and s 29(6) of the SAT Act, concerning the effect of the Tribunal's decision upon review, and the Tribunal's power under s 73 of the SAT Act to make 'any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power' are also relevant. Section 29(5) and s 29(6) of the SAT Act states as follows:
(5)The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision maker's decision —
(a)is to be regarded as, and given effect as, a decision of the decision-maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6)Without limiting subsection (5)(a), the decision-maker has power to do anything necessary to implement the Tribunal's decision.
Section 73 of the SAT Act states as follows:
(1)A power of the Tribunal to make an order or give a direction (the primary power) includes the power to make the order subject to conditions and the power to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power.
(2)An ancillary order may provide for a decision of the Tribunal in relation to a reviewable decision to be implemented by a person who is not the original decision-maker whether or not that person is a party to the proceeding.
As indicated earlier, although the Commission accepts, correctly, that '[i]n cases where SAT could "approve" a [structure plan], … the approval would also enable SAT to vary the approval period [under cl 28(1) of the deemed provisions]', it submits that 'no such case presents' in this proceeding.[283] However, under s 29(1) of the SAT Act, the Tribunal has 'functions and discretions corresponding to those exercisable by the [Commission] in making the reviewable decision' and, under s 29(3) of the SAT Act, the Tribunal may, among other things:
set aside the decision that is being reviewed and –
(i)substitute its own decision; or
(ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
[283] Respondent's closing address [251].
When the Commission made the reviewable decision in this case, it had power, under cl 22(1)(a) of the deemed provisions, to 'approve the structure plan' and, had it done so, it had power, under cl 28(1) of the deemed provisions, to determine that 'another period' (than the default 'period of 10 years') is to be the duration of approval of the structure plan. Although, as a matter of fact, it is not open to the Tribunal in this proceeding to 'approve the structure plan', under cl 22(1)(a) of the deemed provisions, because many of the modifications required by the Commission, which are unchallenged, have not yet been made, and because the Tribunal has determined not to vary the Commission's decision in relation to modifications 19 and 29 and has determined to vary the terms of modifications 18, 24, 25 and 26, as a matter of law, the Tribunal has power in this proceeding to set aside the reviewable decision and to 'approve the structure plan', under cl 22(1)(a) of the deemed provisions. In our view, it is, therefore, within power for the Tribunal to consider the issue of whether, had it 'approve[d] the structure plan', under cl 22(1)(a) of the deemed provisions, it would have determined that 'another period' (than the default 'period of 10 years') is appropriate as the duration of approval of the proposed structure plan.
Furthermore, as a matter of law, the Tribunal has power in this proceeding to set aside the reviewable decision and send the matter back to the Commission for reconsideration in accordance with a direction or recommendation that the proposed structure plan is to be approved (whether after the making of specified modifications by the applicants or otherwise). The Tribunal, therefore, has power in this proceeding to consider and determine whether 'another period' (than the default 'period of 10 years') is appropriate as the duration of approval the proposed structure plan, under cl 28(1) of the deemed provisions.
In addition, the Tribunal has power, under the concluding words of s 29(3) of the SAT Act, 'in any case, [to] make any order the Tribunal considers appropriate' and, under s 73(1) of the SAT Act, 'to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power'. Furthermore, under s 29(5) of the SAT Act, the Tribunal's decision is to be 'given effect as' a decision of the Commission and, under s 29(6) of the SAT Act, the Commission has 'power to do anything necessary to implement the Tribunal's decision'. These provisions enable the Tribunal to determine this proceeding by requiring the applicants to modify the proposed structure plan in accordance with the schedule of modifications required by the Commission, with variations to the schedule of modifications specified by the Tribunal, and resubmit the proposed structure plan, modified in this manner, to the Commission for approval for a specified period, other than the default period of 10 years, which the Tribunal considers to be appropriate.
Alternatively, the Commission submits that a period of approval beyond 10 years would not be the correct and preferable decision, having regard to the planning evidence and the power of the Commission to 'extend the period of approval of a structure plan if there are no changes to the terms of the plan or the conditions attached to the approval', under cl 28(3) of the deemed provisions. In contrast, the applicants submit, on the basis of Mr Leckey's evidence, that the correct and preferable decision is for the proposed structure plan, once modified and resubmitted to the Commission, to be approved for 30 years.
The town planning expert witnesses summarised their respective opinions in their joint statement as follows:[284]
•Mr Leckey considers that because of the size, scale and likely protracted development timeframes for the site, a greater approval term is warranted. By virtue of the size of the structure plan area, external investment potentially involving multiple parties is likely to be required. As such, a longer approval term is considered appropriate to provide the planning certainty required for future investment. Mr Leckey is of the view that a timeframe of 30 years is more suitable for the duration of approval of the proposed LSP, and is consistent with development approval timeframes for land uses within the foreshore as set out in SPP 2.6 (Schedule 1, section 7.1);
•Mr Bassett considers that the period of 10 years is appropriate having regard to the risk factors relating to coastal subdivision;
•Professor Foley and Mr McMullen consider that because many planning and development issues can arise during subdivision and development of the locality including the subject land, and planning circumstances, particularly in a coastal environment change over time, a duration of 10 years is appropriate for any approval of the proposed [structure plan].
[284] Joint statement of the planning experts dated 13 June 2018 (Exhibit 39) [21].
In his oral evidence, Mr Leckey emphasised the 'sheer size of the structure plan at 834 hectares, some 11,000 dwellings',[285] which is 'greater in area than most district structure plans, and is the largest local structure plan in Western Australia that I am aware of in terms of both area and dwelling yield'.[286] In his oral evidence, Mr Leckey gave, as a further reason for his opinion that a 30-year approval is appropriate, the following evidence:[287]
Second to that is - the only other thing was we have three activity centres within the structure plan area, all of which require an activity centre plan to be prepared. Those activity centre plans are essentially mini-structure plans. They're subject to a very similar process in terms of their content, preparation, approval process, etcetera. They also have a 10 year validity period once approved. It's likely, in my experience, that the activity centre [plans] won't be prepared until some form of suburban development - residential development in the area has quite substantially progressed.
Certainly, that has been my experience in other projects, that they need a critical mass of population before they attempt to - before the developer would attempt to launch a centre. So I can't speak as to when that might be. But the longer approval period for the overarching structure plan would allow more time to go ahead and prepare these separate activity centre plans.
[285] ts 668, 17 May 2019.
[286] Statement of Cameron Robert Leckey dated 19 March 2019 [528] (original emphasis).
[287] ts 669, 17 May 2019.
Mr Bassett, Professor Foley and Mr McMullen each gave evidence in crossexamination that they are not aware of any local structure plan in Western Australia which is commensurate or larger than the proposed structure plan in terms of the number of residential lots.[288]
[288] ts 690, 17 May 2019.
Mr Leckey also expanded on his written evidence in relation to this issue under cross-examination as follows:[289]
So first of all, the [S]tate [P]lanning [P]olicy 2.6 allows development within the foreshores to be approved for a 30 year approval under [S]chedule 1, clause 7, variations. The [S]pecial [U]se [(Coastal)] zone, as it stands, has a maximum development approval period of 30 years for use or development under the framework provided by the special use coastal zone. And the [30] year period, in my view, would be a long enough period to allow further monitoring - meaningful monitoring - of the coastal processes to occur.
[289] ts 679, 17 May 2019.
However, the '30 year approval under [S]chedule 1, clause 7, variations' referred to by Mr Leckey in this passage and in his written evidence in fact relates only to public recreation facilities with finite lifespan, under cl 7.1 of Sch One of SPP 2.6, and does not 'allow' such development 'to be approved for a 30 year approval', but rather restricts the variation for public recreation facilitates with finite lifespan to such development 'with an expected useful lifespan of less than 30 years for public recreation purposes'.[290] The reference by Mr Leckey in this passage to the 'maximum development approval period of 30 years' in the SUCZ is a reference to a construct of his and the applicants' own making. Furthermore, and in any case, there would never be a complete correlation between the periods of development approvals, of which there may be many in the SUCZ, and the duration of the structure plan, and, whether the structure plan is for 10 years or longer, the duration of a development approval would continue for the period specified in the approval, subject to the applicable local planning scheme. Finally, in relation to the '[30] year period … to allow further … meaningful monitoring … of the coastal processes to occur', as Mr Leckey conceded in crossexamination, 'the monitoring will be going on almost continuously' and 'there's nothing magic about 30 years for the review, because the reviews will be ongoing'.[291]
[290] Respondent's section 24 bundle (Exhibit 11.1) tab 15 page 839.
[291] ts 682, 17 May 2019.
In their oral evidence, Professor Foley, Mr McMullen and Mr Bassett maintained their opinions that there should not be another period for the duration of the approval of the proposed structure plan than the default period. Professor Foley gave the following evidence:[292]
I don't see any reason why you would need to extend it beyond the 10 years design to - because planning policies tend to change and therefore, there's - they can be reviewed after that period. Development approvals have a limit on them. Substantial (indistinct) two years normally. Subdivision approvals are limited to four years. Local planning schemes are supposed to be reviewed after five years. Local planning strategies take a 10 to 15 year review, generally. They cover a whole local government area.
[292] ts 671, 17 May 2019.
Professor Foley also referred to the Commission's power to extend the approval of a structure plan under cl 28(3) of the deemed provisions and said:[293]
… if they presented the same thing again, then it should be fairly easy to get it approved, because the policies haven't changed and there's no change to the terms or conditions; it just gets extended another 10 years.
[293] ts 672, 17 May 2019.
Mr McMullen agreed with Professor Foley's evidence and added:[294]
The context of the planning instruments and especially the local planning scheme to be required to be subject to regular periodic review and that's about five years that that ought to occur in. And I don't think it's a sensible proposition for a local structure plan within the context of a local planning scheme and other relevant planning instruments to be outlived by those instruments. …
[294] ts 673, 17 May 2019. We note that although Div 5 of Pt 5 of the PD Act provides for a review of a local planning scheme every five years, DPS 2 was gazetted on 6 July 2001, some 18 years ago.
In our view, it is appropriate for the proposed structure plan, once modified in accordance with the schedule of modifications referred to in the Commission's decision, with the variations to the schedule made by the Tribunal, and resubmitted in this manner to the Commission, to be approved for a period of 15 years, in the circumstances of this case. We consider that 'another period' (than the default 'period of 10 years') should be the duration of approval under cl 28(1) of the deemed provisions for the following three reasons when taken together.
First, the proposed structure plan is uniquely large in area and lot yield for a local structure plan in Western Australia.
Secondly, as Mr Leckey said, it will be necessary to prepare, submit and obtain approval by the Commission for separate activity centre plans (under Pt 5 of the deemed provisions) in relation to each of the Secondary Centre B, District Centre F and Coastal Centre R, which Mr Leckey described as 'essentially mini-structure plans'.[295]
[295] ts 669, 17 May 2019.
Thirdly, as indicated earlier, we consider that, in order for the SUCZ to be given effect, the zone, cl 6.6 (other than cl 6.6.1A a), b) and c)) and any further provisions necessary to give effect to the zone and cl 6.6 are incorporated into an applicable local planning scheme within 10 years after the approval of the proposed structure plan by the Commission. In the unusual circumstances of this case, in which such an SUCZ is approved in the local structure plan, but may only operate if the relevant provisions are incorporated into an applicable local planning scheme within 10 years, the approval of the proposed structure plan should be for a period in excess of the 10 years. This means that, if the zone and the relevant provisions are not incorporated into an applicable local planning scheme within 10 years of the approval of the proposed structure plan by the Commission, then, under cl 6.6.1A, the area within the SUCZ (located on coastal nodes 1 and 2) is designated as 'coastal foreshore reserve' and is not subject to any zoning under the structure plan and that land must be ceded to the Crown (free of cost and without any payment of compensation by the Crown) at the time of subdivision or development of any land within the structure plan boundary. It is appropriate for that provision to operate for a period of time under the approval of the proposed structure plan, if a local planning scheme does not incorporate the zone and the relevant provisions within 10 years.
However, we do not consider that approval of the proposed structure plan for any period in excess of 15 years is appropriate, in the circumstances of this case, because, as Professor Foley said, 'planning policies tend to change'[296] and, in particular, as Mr Bassett said, 'the planning instruments and information applicable to the [proposed structure plan] area may change, including with regard to risk'.[297] Indeed, the history of coastal planning for the site underscores Professor Foley's and Mr Bassett's evidence in this regard. Although the existing coastal foreshore reserve was ceded by the applicants' predecessor in title only a little over two decades ago, on the basis of an MRS amendment five years earlier, the Rogers line and the agreed facts in relation to it indicate that the climate science and planning policies on which the existing coastal foreshore reserve adjoining the site was based are now out-dated. In such circumstances, it is particularly important to enable the strategic planning for the site to be reviewed by the Commission within a period of no more than 15 years after approval of the proposed structure plan.
[296] ts 671, 17 May 2019.
[297] ts 675, 17 May 2019.
Mr Leckey gave the following evidence in cross-examination in relation to this aspect:[298]
PETTIT, MR: Doesn't it mean, for example, that on the one hand that if there's a 10 year period of approval, that an extension of the 10 years at 10 years - sorry, a further approval period at 10 years can take account of changes in risk of erosion, policy changes and so on. But on the other hand, a 30 year approval period takes away the ability to adjust the structure plan for variations in policy and risk over the 10 year period?
WITNESS, LECKEY: If there were a substantial shift in either coastal processes or coastal policy during that 30 year period, the discretion would lie with the [C]ommission to be able to amend their (indistinct) scheme accordingly. And they also have the discretion to revoke the structure plan if such a need arose. And that's 28(4) of the [deemed] provisions.
[298] ts 685-686, 17 May 2019.
However, cl 28(4) of the deemed provisions, to which Mr Leckey referred in this passage, is (understandably) very restrictive of the Commission's power to revoke its approval of a structure plan under cl 28(1)(a) of the deemed provisions. Clause 28(4) of the deemed provisions only allows the Commission to revoke its approval of a structure plan 'if the Commission considers that the structure plan cannot be effectively implemented because of a legislative change or a change in a State planning policy'. Contrary to Mr Leckey's evidence, cl 28(1)(a) of the deemed provisions (in light of cl 28(4) of the deemed provisions) does not allow the Commission 'to adjust the structure plan for variations in policy and risk over the 10 year period', even if there were 'a substantial shift in either coastal processes or coastal policy', but only applies in an (extreme) case where 'the structure plan cannot be effectively implemented', because of changes in legislation or in a State planning policy. Clause 28(1)(a) and cl 28(4) of the deemed provisions do not warrant a longer period than 15 years for the duration of approval, in the circumstances of this case.

Conclusion

The 'correct and preferable decision', under s 27(2) of the SAT Act, is that the application for review should be allowed in part.
We have determined that the proposed structure plan is incompetent and incapable of approval insofar as it shows the north-eastern part of the bulge as zoned 'Centre' and 'Residential' and that this part of the proposed structure plan cannot be approved. Furthermore, we are not satisfied that the 'land swap' proposed by the applicants of 'Future MRS Foreshore Reserve A' in the south-western corner of the site for the north-eastern part of the bulge is appropriate.

We have determined that the proposed structure plan is not appropriate in terms of the location and size of coastal foreshore reserve. Other than two distinct and discrete parts of the SUCZ, located on coastal node 1 (which adjoins Blowout 1) and coastal node 2 (which adjoins Blowout 3), the portion of the site that is seaward of the Rogers line should be designated as 'coastal foreshore reserve', because it is required to allow for coastal processes. In addition, in our view, the proposed structure plan is significantly inadequate in terms of the provision of coastal foreshore reserve which is not vulnerable to coastal processes over the 100-year planning timeframe. The proposed coastal foreshore reserve does not adequately provide 'the values, functions and uses prescribed should the coastal processes be realised over the planning timeframe' (cl 1 of Sch One of SPP 2.6), in particular, biodiversity and ecosystem integrity (ecological), visual landscape amenity and public access and recreational values, uses and functions which are relevant and appropriate in the circumstances of this case.
We have also determined that the structure plan should provide for the transfer of coastal foreshore reserve into public ownership at the time of subdivision or development, because a condition of subdivision or development approval of the site requiring the cession of the area designated under the structure plan as coastal foreshore reserve (free of cost and without the payment of compensation by the Crown) would have requisite nexus to the subdivision or development and would not be legally unreasonable and, having regard to the clear terms of the planning policy framework in SPP 2.6 and Liveable Neighbourhoods, such a condition would be consistent with orderly and proper planning and appropriate.
As indicated earlier, the applicants contest modifications 18, 19, 24, 25, 26 and 29 required by the Commission. It follows from our determinations summarised in the preceding paragraphs that modifications 19 (requiring the coastal foreshore reserve to be ceded free of cost at the time of subdivision or development), [299] 24 (concerning modifications to the structure plan map, including to show 'an appropriate coastal foreshore reserve inclusive of the allowance for coastal physical processes and land not vulnerable to coastal processes at the end of the planning timeframe'),[300] and 25[301] and 29 (concerning the need to make consequential amendments to the proposed structure plan) should be affirmed.
[299] However, the new clause number referred to in modification 19 ('Clause 6.6') needs to be changed, because cl 6.6 relating to the SUCZ is to remain (with the variations we have referred to). We will therefore vary the new clause number to 'Clause 6.8'.
[300] Other than par (c) and par (g)(ii) concerning the SUCZ.
[301] Other than the reference to the SUCZ.
We have determined that the SUCZ, as proposed by the applicants, is not appropriate, because it would essentially 'privatise' a substantial portion of what SPP 2.6 clearly contemplates should generally be public land, and because the ecological expert evidence indicates that the development of most of the SUCZ would have an adverse environmental impact by inhibiting the natural progression and maintenance of vegetation quality as the coast erodes. However, we have also determined that a variation of the SUCZ, limited and located as two distinct and discrete coastal nodes, and modified in the manner set out in these reasons, would be generally consistent with SPP 2.6 and appropriate. We also determined that the SUCZ and the provisions of the structure plan in relation to it should not commence unless and until the zone and the provisions, including the requirement for delayed vesting of the land, and any further provisions necessary to give effect to the zone, are incorporated into an applicable local planning scheme, and that if this does not occur within 10 years after approval of the structure plan by the Commission, then the land in the zone is designated as 'coastal foreshore reserve'. As a consequence, the text of modification 18 (requiring that cl 6.6, relating to the SUCZ, be deleted) and the related par (c) and par (g)(ii) of modification 24 should be deleted.
We set out at [248]-[257] above amendments to cl 6.6 that we consider are required to ensure that the varied SUCZ (including delayed vesting) is both workable and (subject to [264]-[267] above) enforceable.[302] We consider that the amendments to cl 6.6 should be required to be made by replacing the text of modification 18. However, given that the parties have not had the opportunity to consider and make submissions in relation to the form and expression of our foreshadowed replacement of modification 18, it is appropriate that we defer making final orders in this matter until we have given the parties an opportunity to make submissions in relation to the form and expression of our foreshadowed modification and we have considered any such submissions.
[302] ts 626, 16 May 2019.
Modifications 24 and 25 should be varied to reflect our decision in relation to the SUCZ and, in relation to par (d) of modification 24, to delete the words 'to the east of the accepted "coastal processes allowance"', because those words are misleading. Insofar as the variations to modification 24 are associated with the form and expression that we have foreshadowed in relation to modification 18, it is appropriate to defer making final orders until the parties have had an opportunity to make submissions in relation to the form and expression of modification 18 and we have considered any such submissions.
It is the joint position of the parties that modification 26 (concerning the Public Open Space Schedule) should be deleted and replaced with the applicants' proposed modification 26A. Proposed modification 26A requires the Public Open Space Schedules and associated text and figures in the proposed structure plan to be provided in the pro forma set out in Liveable Neighbourhoods and updated to reflect the public open space areas as depicted on the proposed structure plan. We agree with the joint position of the parties, but consider that, for clarity, the modification should refer to the 'Modified Local Structure Plan Map reflecting the modifications in the schedule of modifications'.
We have also determined that the Tribunal has power to require the applicants to modify the proposed structure plan and resubmit it, modified in that form, to the Commission for approval for a specified period, other than the default period of 10 years, which the Tribunal considers to be appropriate. We have determined that, in the circumstances of this case, it is appropriate for the proposed structure plan to be approved for a period of 15 years, rather than for the default period of 10 years, but not for a period of 30 years as sought by the applicants.
Finally, we note that, although not challenged in this review, there is a discrepancy between modifications 11 and 12. Modification 11 requires 'all reference to "Residential Density Code Plan" to be replaced with "Density Plan"'. However, modification 12 requires the substitution of cl 6.2.3 in terms which include reference to the 'Residential Density Code Plan'. In order to ensure consistency in expression, the words 'Residential Density Code Plan' in modification 12 should be replaced with 'Density Plan'.
For the reasons we have given earlier, subject to the parties' submissions as to the form and expression of modification 18 and of associated variations to modification 24, we foreshadow the following final orders:
1.The application for review is allowed in part.
2.The decision made by the Western Australian Planning Commission (Commission) on 26 April 2016, not to approve North Two Rocks Local Structure Plan No. 91 (LSP 91) and to require LSP 91 to be modified in accordance with the schedule of modifications in Attachment 6 of the report to the Statutory Planning Committee (schedule of modifications) and be resubmitted with those modifications to the Commission for approval for a period of 10 years, is set aside and a decision is substituted requiring the applicants to modify LSP 91 in the manner specified in the schedule of modifications with the following variations to the schedule of modifications and resubmit LSP 91 modified in this manner to the Commission for approval for a period of 15 years:
(a)Modification 12 is varied by deleting the reference to 'Residential Density Code Plan' and replacing it with a reference to 'Density Plan';
(b)The text of modification 18 is deleted and replaced with the following:
'Clause 6.6 relating to the 'Special Use (Coastal) Zone' is to be amended as follows:
(a)Insert the following clause prior to cl 6.6.1:
6.6.1A Requirement for Special Use (Coastal) Zone to be Given Effect by Local Planning Scheme
a)The Special Use (Coastal) Zone and clause 6.6 (other than clause 6.6.1A a), b) and c)) have no effect unless and until the zone and clause 6.6 (other than clause 6.6.1A a), b) and c)) and any further provisions necessary to give effect to the zone and clause 6.6 are incorporated into an applicable local planning scheme within 10 years after the approval of this Structure Plan by the Western Australian Planning Commission.
b)The local planning scheme referred to in paragraph a) of this clause may:
i)include any part of any adjoining unvegetated area, which under the Structure Plan is designated as 'coastal foreshore reserve', in the Special Use (Coastal Zone); and
ii)add any discretionary land use considered appropriate for the Special Use (Coastal) Zone to the list of discretionary land uses in clause 6.6.3 b), subject to clause 6.6.3 c) ii).
c)If the Special Use (Coastal) Zone and clause 6.6 (other than clause 6.6.1A a), b) and c)) and any further provisions necessary to give effect to the zone and clause 6.6 are not incorporated into an applicable local planning scheme within 10 years after the approval of this Structure Plan by the Western Australian Planning Commission, then the land in the Special Use (Coastal) Zone is designated as 'coastal foreshore reserve' and is not subject to any zoning under this Structure Plan, and the landowner must cede that land to the Crown (free of cost and without any payment of compensation by the Crown) at the time of subdivision or development of any land within the Structure Plan boundary.';
(b)Delete the text of cl 6.6.1 and replace with the following:
'The objectives of the Special Use (Coastal) Zone are to:
a)recognise the two distinct and discrete parts of the Physical Processes Setback, pursuant to State Planning Policy 2.6 State Coastal Planning Policy, within the Structure Plan boundary which adjoin the unvegetated areas identified as 'Blowout 1' and 'Blowout 3', shown on Conferral Figure 2.2 and Conferral Figure 2.3 (respectively) in Joint Statement 2 of the Environmental Experts dated 15 March 2019 (Exhibit 29 in State Administrative Tribunal proceedings DR 188 of 2016) (land);
b)put in place suitable development controls that allow for the land to be used until the most landward part of the Horizontal Shoreline Datum is within 40 metres of the most seaward part of the land;
c)recognise the constraints in terms of use and the need to minimise risk; and
d)require the owner of the land to cede the land to the Crown (free of cost and without any payment of compensation by the Crown) when the most landward part of the Horizontal Shoreline Datum is within 40 metres of the most seaward part of any of the land in the zone.';
(c)In cl 6.6.2 a) correct the spelling of 'Foreshore' in the third bullet point and capitalise 'Use' in the fourth bullet point;
(d)Delete the text of cl 6.6.2 b) and replace with the following:
'The Special Use (Coastal) Zone is to comprise a single lot and is not to be further subdivided.';
(e)Delete the words 'Subject to clause 6.6.3 d),' and capitalise 'All' in cl 6.6.3 b).
(f)Delete the text of cl 6.6.3 c) and replace with the following:
'In addition to having regard to the matters contained in cl 67 of the deemed provisions, the City shall only exercise its discretion to grant development approval where is satisfied that:
(i)any buildings proposed are readily capable of removal and relocation; and
(ii)the development falls within one of the possible variations in clause 7 of Schedule One to State Planning Policy No. 2.6 - State Coastal Planning Policy.';
(g)Delete cl 6.6.3 d) and e);
(h)Delete the text of cl 6.6.5 a) and replace with the following:
'Any approval granted pursuant to clause 6.6.3 shall be limited to a period of not more than 30 years from the date of approval, at which point the approval will lapse and the development shall be removed and the land rehabilitated to its predevelopment condition by the landowner at its cost.';
(i)Delete the text of cl 6.6.5 d) and replace with the following:
'There is no limit to the number of extensions that the City may grant, subject to the satisfaction of b) above and compliance with the requirement that, unless a further extension is granted, at the end of the term of approval the development shall be removed and the land rehabilitated to its pre-development condition by the landowner at its cost.';
(j)Add cl 6.6.5 e) as follows:
Any approval granted pursuant to clause 6.6.3 shall cease to have effect and the development shall be removed and the land rehabilitated to its pre-development condition by the landowner at its cost when the most landward part of the Horizontal Shoreline Datum is within 40 metres of the most seaward part of any of the land in the zone.';
(k)Delete the heading and text of cl 6.6.6 and replace with the following:
'6.6.6 Requirement for Delayed Vesting (Without Compensation) of Special Use (Coastal) Zone
The owner of the land in the Special Use (Coastal) Zone must cede that land to the Crown (free of cost and without any payment of compensation by the Crown) when the most landward part of the Horizontal Shoreline Datum is within 40 metres of the most seaward part of any of the land in the zone.'; and
(l)Add the following cl 6.6.7:
'6.6.7 Requirement for Report from Coastal Engineer as to Distance Between the Horizontal Shoreline Datum and Land in the Zone
The owner of the land in the Special Use (Coastal) Zone must provide a report from a Coastal Engineer nominated or approved by the City of Wanneroo to the City of Wanneroo indicating the distance between the most landward part of the Horizontal Shoreline Datum and the most seaward part of any of the land in the zone:
(a)whenever development approval or an extension of a development approval in relation to land in the zone is sought; and
(b)in addition, at least once every five years, or more frequently if requested by the City of Wanneroo';
(c)Modification 19 is varied by deleting the reference to 'Clause 6.6' and replacing it with a reference to 'Clause 6.8';
(d)Modification 24 is varied as follows:
(i)The introductory paragraph is deleted and replaced with the following:
'Plan A Structure Plan Map being replaced with 'North Two Rocks Local Structure Plan' dated 10 September 2018 and further modified as follows:';
(ii)The text of paragraph (b) is deleted and replaced with the following:
'Provide for an appropriate coastal foreshore reserve inclusive of an allowance for coastal physical processes and land not vulnerable to coastal processes as the end of the 100-year planning timeframe, in accordance with State Planning Policy 2.6 - State Costal Planning Policy and associated Guidelines, excluding the Special Use (Coastal) zone referred to in paragraph (c) of this modification, to the satisfaction of the WAPC.';
(iii)The text of paragraph (c) is deleted and replaced with the following:
'Amend the 'North Two Rocks Local Structure Plan' dated 10 September 2018 to show:
(i)the Special Use (Coastal) zone as comprising only the two distinct and discrete parts of that zone shown on 'North Two Rocks Local Structure Plan' dated 10 September 2018 which adjoin the unvegetated areas identified as 'Blowout 1' (Blowout 1) and 'Blowout 3' (Blowout 3) shown on Conferral Figure 2.2 and Conferral Figure 2.3 (respectively) in Joint Statement 2 of the Environmental Experts dated 15 March 2019 (Exhibit 29 in State Administrative Tribunal proceedings DR 188 of 2016); and
(ii)the parts of the Special Use (Coastal) zone shown on the 'North Two Rocks Local Structure Plan' dated 10 September 2018 which do not adjoin Blowout 1 and Blowout 3 as 'coastal foreshore reserve'.';
(iv)The text of paragraph (d) is deleted and replaced with the following:
'Clearly depict a continuous 'indicative coastal road' along the entire foreshore interface of the LSP area.'; and
(v)Paragraph (g)(ii) is deleted;
(e)Modification 25 is varied by deleting the words 'Remove all references to the 'Special Use' zone.'; and
(f)The text of modification 26 is deleted and replaced with the following:
'POS Schedules and associated text and figures in Part One and Part Two to be provided in the proforma in Liveable Neighbourhoods 2009 and updated to reflect the POS areas as depicted in the Modified Local Structure Plan Map reflecting the modifications in the schedule of modifications.'

Orders

We make the following orders:
1.The matter is listed to hear any submissions the parties wish to make in relation to the form and expression of foreshadowed varied modification 18 at 10.00 am on 29 August 2019.
2.If either party does not wish to make any submissions it is to advise the Tribunal and the other party in writing by 26 August 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry
5 AUGUST 2019

Attachment A

Attachment B

Attachment C