WEST AUSTRALIAN SHALOM GROUP INC and CITY OF SWAN

[2019] WASAT 80

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   WEST AUSTRALIAN SHALOM GROUP INC and CITY OF SWAN [2019] WASAT 80

MEMBER:   MS L EDDY, SENIOR MEMBER

MR P DE VILLIERS, MEMBER

MR S WILLEY, MEMBER

HEARD:   11 FEBRUARY-14 FEBRUARY, 13 MAY AND 28 JUNE 2019

DELIVERED          :   7 OCTOBER 2019

FILE NO/S:   DR 79 of 2019

DR 340 of 2016

DR 299 of 2015

BETWEEN:   WEST AUSTRALIAN SHALOM GROUP INC

Applicant

AND

CITY OF SWAN

Respondent

Catchwords:

Town Planning - Development - Swan Valley - Area A - Area B - Community Use - Swan Valley Planning Act - Planning objectives - Protection of viticulture - Spray drift - Amenity impact - Community benefit

Legislation:

City of Swan Local Planning Scheme No. 17, cl 1.7, cl 4.2, cl 4.2.10, cl 4.2.10(a), cl 4.2.10(b), cl 4.2.10(c), cl 4.2.13, cl 4.2.13(a), cl 4.2.13(b), cl 4.2.13(c), cl 4.3, cl 4.3.1, cl 4.3.2, cl 4.3.4, cl 9.4, cl 10.2
Metropolitan Region Scheme, cl 30B
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67, cl 67(b), cl 67(n), cl 67(y), cl 67(zb), reg 10
Planning and Development Act 2005 (WA), s 245, s 245(2) s 252(2), s 257B
State Administrative Tribunal Act 2004 (WA), s 31(1), s 105
Swan Valley Planning Act 1995 (WA), s 6, s 7, s 8, s 9, s 14, s 15, s 15(5), s 23, Pt 1, Pt 2, Pt 3, Pt 4, Pt 5
Building Code of Australia

Result:

Applications allowed

Category:    B

Representation:

Counsel:

Applicant	:	Ms B Moharich & Mr M Flint
Respondent	:	Mr PL Wittkuhn

Solicitors:

Applicant	:	Steenhof Brothers Barristers & Solicitors
Respondent	:	McLeods

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

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

City of Swan v West Australian Shalom Group Inc [2017] WASC 217

Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19

Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157

Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431

Jensen v Nationwide News Pty Ltd [No 12] [2019] WASC 250

Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529

Puma Energy Australia and City of Cockburn [2016] WASAT 36

Radha Soami Satsang Beas Australia and City of Swan [2019] WASAT 24

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

West Australian Shalom Group Inc and City of Swan [2016] WASAT 41

West Australian Shalom Group Inc and City of Swan [2018] WASAT 36

West Australian Shalom Group Inc and City of Swan [2018] WASAT 36 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. West Australian Shalom Group Inc (Shalom or applicant) is a not­for­profit organisation that runs what it describes as a restoration program to restore the lives of men with addiction problems.  As part of that program, Shalom operates, amongst other things, two facilities in the Swan Valley.  One is located at Units 1-3, 157 Park Street, Brabham (Park Street site) and the other is located at 52 Forest Road, Henley Brook (Forest Road site).  The applicant refers to its program as the Shalom House program.  The details of the Shalom House program are described in the Statement of Agreed Facts (Exhibit 7) at 61-67.  For present purposes it is not necessary to reproduce those details.

2. Shalom made applications for retrospective planning approval under the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme) in relation to both the Park Street site and the Forest Road site.  The City of Swan (City or respondent) refused each of those applications and Shalom sought review of each of those decisions in the Tribunal.  The Tribunal made orders that the review of the decision in relation to the Park Street site (DR 299 of 2015) and the review of the decision in relation to the Forest Street site (DR 340 of 2016) shall remain separate proceedings but will be heard and determined together, with the evidence in each matter to be taken as evidence in the other matter. 

3. Prior to the conclusion of the final hearing, the applicant lodged another application in the Tribunal (DR 79 of 2019).  That application seeks the review of the decision of the City (under delegated authority) in relation to Shalom's application for retrospective planning approval under the Metropolitan Region Scheme (MRS) in relation to the Park Street site.  As that application raised no issues different to the issues in DR 340 of 2016, the Tribunal made orders, by the consent of the parties, that this third matter (DR 79 of 2019) would also be heard and determined at the same time as the other two matters (DR 299 of 2015 and DR 340 of 2016).

4. For convenience, we will describe the application for development at the Park Street site as the Park Street proposal and at the Forest Road site as the Forest Road proposal.  Where the Tribunal is referring to both we will use the term 'proposed development'.

Background

Park Street site

1. In June 2015, Shalom applied for retrospective planning approval under LPS 17 to change the use of the Park Street site from three 'Grouped Dwellings' to 'Community Purpose' in order to 'be used for the accommodation of up to 30 men and the provision by the West Australian Shalom Group Inc of a range of personal support services aimed at addressing lifestyle issues and developing life skills for residents' (the Park Street proposal).  The proposed change of use does not involve any physical modifications to the existing buildings.

2. Section 15 of the Swan Valley Planning Act 1995 (WA) (SVP Act) requires that any development applications made to the respondent under LPS 17 relating to land in the Swan Valley must be referred to the Swan Valley Planning Committee (SVP Committee). It appears the Park Street proposal was referred to the SVP Committee, as in August 2015 it made the following resolution: Exhibit 3, tab 11 (original emphasis):

   1.note that the land use for the development application is 'residential', not 'community purpose; and resolves

   2.that the proposed development at Lot 1 (No. 1-3/157) Park Street, Henley Brook is not compatible with the planning objectives 7.1, 7.2 and 7.3 for Area A and the Swan Valley Interim Planning Policy; and

   3.recommends that the application be refused.

3. In July 2016, the City refused the Park Street proposal on the basis that it involved a 'Residential Building' use, which is a use that is not permitted within the zone in which the Park Street site is located under LPS 17. 

4. In August 2016, Shalom applied to the Tribunal for a review of the respondent's decision pursuant to s 252(2) of the Planning and Development Act 2005 (WA) (PD Act). In April 2016, the Tribunal determined, as a preliminary issue, that the Park Street proposal did not fall within any of the land use classifications defined in LPS 17, but rather was an innominate, or a use not listed in the Scheme: West Australian Shalom Group Inc and City of Swan [2016] WASAT 41.

5. The respondent subsequently sought leave to appeal that decision to the Supreme Court under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Shalom filed a notice of contention and application for leave to cross appeal. The applications for leave and the appeal and cross appeal were heard together. On 3 August 2017 the Supreme Court found that the appropriate course was for the decision of the Tribunal to be set aside, and the matter to be remitted to the Tribunal, differently constituted, in order for the issues to be considered and determined taking into account the reasons set out in the decision by the Supreme Court: City of Swan v West Australian Shalom Group Inc [2017] WASC 217.

6. Following a hearing in March 2018, on 25 May 2018 the Tribunal found that the Park Street proposal is not properly classified as 'Residential Building' under LPS 17, but rather is properly classified as 'Community Purpose' and therefore capable of approval under the Scheme:  West Australian Shalom Group Inc and City of Swan [2018] WASAT 36 (Shalom 3). At the time of that determination the respondent had not yet considered the merits of the Park Street proposal. The Tribunal therefore invited the City to reconsider its decision to refuse the development application under s 31(1) of the SAT Act.

7. While the respondent's planning officers recommended that the Park Street proposal warranted the exercise of discretion to grant conditional approval, on the 4 July 2018 the respondent resolved to refuse the application for the following reasons:

   1.The use is considered to be inconsistent with objective a) of the Rural Residential zoning applicable to the land in that it is not a low density residential use; and

   2.The use is considered to be inconsistent with planning objectives 2 and 3 for proposed development within Area A of the Swan Valley Planning Act 1995 in that it is not a viticulture, horticulture, hobby farming, tourism of other rural activity.

8. Following that reconsideration, on 17 August 2018 the Tribunal made the following order:  West Australian Shalom Group Inc and City of Swan [2018] WASAT 36 (S):

   Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision on or before 28 September 2018 on the basis that the use for which development approval is sought is properly classified as "Community Purpose" under the City of Swan Local Planning Scheme No. 17 and is therefore capable of being approved for the reasons set out in West Australian Shalom Group Inc and City of Swan [2018] WASAT 36.

9. At the Ordinary Meeting of the respondent's Council held on 26 September 2018 the respondent reconsidered the matter.  Again the respondent's planning officers recommended approval of the Park Street proposal.  The respondent's Council resolved as follows:

   1)Acknowledge unequivocally that Shalom House is a 'Community Purpose' use pursuant to Local Planning Scheme No.17 as determined by the State Administrative Tribunal in Western Australia Shalom Group Inc. and City of Swan [2018] WASAT 36.

   2)Refuse to grant approval to the proposed change of use ­ 'Grouped Dwelling' to 'Community Purpose' (Shalom House) ­Lot 1(No.1-3/157) Park Street, Henley Brook for the following reasons:

   A.The use is considered to be inconsistent with Objective a) of the Rural Residential zoning applicable to the land in that it is not a low density residential use; and

   B.The use is considered to be inconsistent with Planning Objectives 2 and 3 for proposed development within Area A of the Swan Valley Planning Act 1995 as follows

   Objective 2 the encouragement of viticulture, horticulture, hobby farming, or rural activities compatible with rural residential uses in the area.

   Objective 3 the encouragement of tourism that compliments the rural character of the area

   3)Given the current review of the Swan Valley Planning Act and recognising the legislative State significance of the Swan Valley, the City requests that the Minister of Planning the Hon. Rita Safiotti provide a formal submission to SAT, outlining the planning commissions position on this application.

   4)The reason for changing the officer's recommendation is that this application does not comply with Objectives 2 and 3 of AREA A of the Swan Valley Planning Act 1995.

10. In February 2019 Shalom applied to the respondent for approval of the Park Street proposal under the MRS.  On 20 March 2019 the City (acting under delegated authority from the Western Australian Planning Commission) refused the Park Street Proposal for the following reasons:

    1.The application is considered to be inconsistent with the purpose of the Rural zone;

    2.Approval of the application is considered contrary to orderly and proper planning for the locality; and

    3.Approval of the application would detract from the preservation of the amenities of the locality.

11. On 15 April 2019, the applicant lodged an application for review of the City's decision in the Tribunal. 

Forest Street site

1. Meanwhile, in September 2016, Shalom applied for retrospective approval under LPS 17 to change the use of the Forest Road site from two 'Grouped Dwellings' to a men's life restoration facility, which it described as a use not listed in the Scheme (the Forest Road proposal).  In October 2016, the respondent advised the applicant that it had refused the Forest Road proposal on the basis that:

   1.The proposed change of use is considered to be classified as a 'Residential Building' pursuant to the City's Local planning Scheme No. 17.

   2.A 'Residential Building' is a use that is not permitted by the Scheme within the 'Swan Valley Rural' zone applicable to the subject lot.

2. There is no evidence that the Forest Road proposal was ever referred to the SVP Committee. However, an exception to the requirement to refer development applications to the SVP Committee applies where the SVP Committee has determined that any particular class or description of applications for development approval need not be referred to the Committee for advice: s 15(5) of the SVP Act. The SVP Committee has determined that a number of classes of applications do not have to be referred to it, including all classes of development that are listed as 'X' uses in the Zoning Table of the Scheme: Exhibit 59. Accordingly, given the respondent's view of the correct land use classification of the Forest Road proposal, it was not required to refer the Park Street proposal to the SVP Committee.

3. On 3 November 2016, the applicant lodged an application in the Tribunal seeking review of the respondent's decision pursuant to s 252(2) of the PD Act. At that time the Tribunal's preliminary decision in relation to the Park Street proposal was before the Supreme Court, so consequently the proceedings concerning the Forest Road proposal remained pending until the question of the proper land use classification was resolved.

4. Similarly to the Park Street proposal, the respondent was invited to reconsider its decision in relation to the Forest Road proposal in June 2018.  On 26 September 2018 the respondent's Council acknowledged that the proper use classification for the Forest Road proposal is 'Community Purpose' and resolved to refuse the Forest Road proposal for the following reasons:

   A.The use is considered to be inconsistent with Objective a) of the Swan Valley Rural zoning applicable to the land in that it does not promote the core are of the Swan Valley primarily as a horticultural, recreational, tourism or landscape resource; and

   B.The use is considered to be inconsistent with objective d) of the Swan Valley Rural zoning applicable to the land by noncompliance with Planning Objective 4 proposed development within Area B of the Swan Valley Planning Act 1995 a traditional activity of the Swan Valley nor industry associated with viticulture, horticulture and Cottage industry.

   C.Additionally, the use is considered to also be inconsistent with the Swan Valley Planning Act 1995 Planning Objectives 1, 3 and 7 for any proposed development in AREA B as follows:

   -Objective 1:    The protection of viticulture.

   -Objective 3:    The encouragement of tourism facilities provided that they do not detract from the rural character of the area.

   -Objective 7:    The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.

   3.Given the current Review of the Swan Valley Planning Act 1995 and recognising the legislated State significance of the Swan Valley, the City of Swan requests that the Minister for Planning provide a formal submission to the State Administrative Tribunal outlining the State Planning Commission's position on this application.

   4.The reason for changing the officer's recommendation is that this application does not comply with Objectives 1, 3 and 7 of AREA B of the Swan Valley Planning Act 1995.

Site and locality

1. The following facts are taken directly from the Statement of Agreed Facts filed by the parties or from the statements of fact contained in the parties' Statements of Issues Facts and Contentions that were agreed:  Exhibits 2, 4, 7, 11 and 12.

The Park Street site

1. The Park Street site is located at the corner of Park Street and Murray Road to the south-west of the intersection.  It has an area of approximately 4 hectares. 

2. The existing building on the Park Street site is of brick and tile construction and is divided into three grouped dwellings that are split over two storeys.  These dwellings however sit under one roof, which together with a verandah along the length of the front façade, give the impression from Park Street of a large single house.

3. The dwellings at each end comprise five bedrooms, two bathrooms, a kitchen and meals area, as well as a lounge and games room.  Each of these end units has behind it another small living unit.

4. The central dwelling is somewhat smaller with three bedrooms.  A covered balcony on the upper floor runs along the length of the southern side of the building.

5. The two living units to the rear each have one bedroom, a kitchen, and one bathroom.  One of them also has a dining area and a storage area off the bedroom.

6. In the centre of the building between the carports is a large laundry with a separate toilet.

7. There are no doors or openings that enable access between the separate living units and each of the living units has its own lockable entry door.

8. Behind the dwellings are two large carports, once of which has been converted into a storage room.  The other is used as a gym area.

9. There are lawns and gardens within the immediate curtilage of the main building.  To the rear of the main building and its curtilage are cleared paddocks.  One of those paddocks has been levelled and turned into a soccer/sports field for the men staying at the Park Street site to use during their recreation time.

10. The property does not bear any signs. 

11. The area surrounding the Park Street site is generally characterised by rural-residential uses, with a number of properties containing larger single houses on large predominantly cleared lots.  A number of properties appear to have been cleared for the keeping of a limited number of livestock whilst others contain fruit trees and the like.  Properties to the north of Park Street generally have more vegetation than those to the south of the street.

12. The locality lies in an approximately 1 kilometre-wide wedge between the expanded West Swan-Ellenbrook urban corridor that lies 300 metres to the west of the Park Street site and the Swan Valley Rural zone that follows the course of a section of the Swan River to the east.

The Forest Road site

1. The Forest Road site is located towards the end of Forest Road.     It is approximately 4.8 hectares in area.  The width at the road frontage to Forest Road is 100 metres.  The eastern boundary abuts the Swan River.

2. The existing building on the Forest Road site is a single storey building constructed of brick and tile.  At approximately the central point of the building's frontage to Forest Road, there is a small foyer or entry hallway with double entry doors, which presents externally as a front entry to the building.  The foyer is not used as an entry to the building and its doors are kept locked. 

3. From the foyer there are two internal doors opening into two separate sections of the house.  Each section has a lockable door, separate to the foyer doorway, which is used to access each section from the inside.  Each section also has a lockable door, other than the foyer door, through which the section can be accessed from the outside.  Each of the sections has a large kitchen area as well as dining areas and each has two living areas.  Each section also has a bathroom and a laundry.  One of the sections has six bedrooms and the other has four bedrooms.  The larger section also has an alfresco area which has a roof and is enclosed on three sides.  Both sections of the house have a garage building adjacent with roller doors.  There are two driveways, each leading to one of the garage buildings.

1. Immediately to the north of the building is a swimming pool running approximately parallel to the northern wall of the dwelling.

2. There is lawn and some landscaping within the front setback area of the building.  To the rear of the dwelling, the balance of the property is cleared paddocks.

3. The property is not deep-sewered.  There is an on-site effluent disposal system located to the east of the building.

4. The property does not bear any signage.

5. The Tribunal observed the area surrounding the Forest Road site to be a mix of agricultural uses, including viticulture, tourism uses and single rural residential type uses.

The planning framework

1. The SVP Act delineates land within the Swan Valley into three areas and provides general planning objectives of the Swan Valley as a whole and provides planning objectives for each of the areas. Section 6 of the SVP Act provides:

   The general planning objectives for the Swan Valley are the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character, the protection of the environment and the character of the area, the reduction of nutrient levels in the Swan River and the promotion of tourism that complements the rural character of the Swan Valley.

2. The Park Street site is located within Area A of the Swan Valley (Area A) and the Forest Road site is located within Area B of the Swan Valley (Area B) according to the SVP Act.

3. The planning objectives for Area A are specified in s 7 of the SVP Act, which provides:

   The planning objectives for any proposed development in Area A are as follows -

   1.The maintenance of the rural character of the area.

   2.The encouragement of viticulture, horticulture, hobby farming, and rural activities compatible with rural residential uses in the area.

   3.The encouragement of tourism that complements the rural character of the area[.]

4. The planning objectives for Area B are specified in s 8 of the SVP Act, which provides:

   The planning objectives for any proposed development in Area B are as follows ­

   1.The protection of viticulture.

   2.The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands.

   3.The encouragement of tourist facilities provided that they do not detract from the rural character of the area.

   4.The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area.

   5.The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan.

   5A.The limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area.

   6.The compatibility of design, siting and landscaping with the character of the area.

   7.The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.

   8.The extraction of basic raw materials so far as it is compatible with the character and amenity of the area and subject to the rehabilitation of the affected land.

   9.The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.

   10.The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area.

5. Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (LPS Regulations) is incorporated into LPS 17: reg 10 of the LPS Regulations and s 257B of the PD Act. Clause 67 of Sch 2 of the LPS Regulations provides a list of matters that, to the extent relevant, the decision-maker must have due regard to when determining a development application. This provision applies in place of cl 10.2 of LPS 17: Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 at [36]-[47]. Relevantly to this matter, those matters include:

   (a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

   (b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;

   (c)any approved State planning policy;

   …

   (f)any policy of the State;

   (g)any local planning policy for the Scheme area;

   …

   (m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;

   (n)the amenity of the locality including the following -

   (i)environmental impacts of the development;

   (ii)the character of the locality;

   (iii)social impacts of the development;

   …

   (q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bushfire, soil erosion, land degradation or any other risk;

   …

   (x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;

   (y)any submissions received on the application;

   …

   (zb)any other planning considerations the local considers appropriate.

6. The Park Street site is zoned 'Urban' under the MRS and is located with a 'Rural-Residential' zone under LPS 17.

7. The objectives of the 'Rural-Residential' zone are set out at           cl 4.2.10 of LPS 17 as follows:

   (a)provide for low density residential development and associated rural-residential activities in comprehensively planned estates;

   (b)recognise the environmental characteristics of the landscape, including landform, water resources, remnant vegetation, and native fauna, and to ensure as far as practicable, that these characteristics are not compromised by development and use of the land;

   (c)encourage the rehabilitation of degraded areas through selected replanting of indigenous flora, and the creation and enhancement of habitat for indigenous fauna.

8. Unlike in the Swan Valley Rural zone, the Rural-Residential zone does not directly incorporate the planning objectives for Area A contained in s 7 of the SVP Act. The Tribunal has recently analysed the planning framework that applies in the Swan Valley, at least in so far as it relates to Area B of the Swan Valley: Radha Soami Satsang Beas Australia and City of Swan [2019] WASAT 24 at [11]-[62] (RSSB).  The respondent submits that, to the extent that it may be inferred from the reasoning in RSSB that one does not need to have regard to the planning objectives in the SVP Act when determining a development application in an area to which those relate, the Tribunal erred. 

9. In making the decision in RSSB, the Tribunal was focused on the objectives of the Swan Valley Rural zone and the application of the planning objectives for Area B prescribed by the SVP Act in that context.  Given that the planning objectives for Area A are not directly incorporated into the objectives for the Rural-Residential zone, or elsewhere in the Scheme, the question arises as to what use should be made of the planning objectives for Area A in determining the application in relation to the Park Street site. 

10. The SVP Act does not state that development within each of the Areas identified in Pt 2 must comply with the planning objectives for the relevant Area. There can be no doubt that the SVP Committee is required to have regard to the planning objectives in s 7, s 8 or s 9 of the SVP Act that applies to the proposal in giving its advice: s 14 of the SVP Act. In addition, the City is required to ensure that any aspects of its Scheme, and any policies made under the Scheme that relate to subdivision, the provision of infrastructure and the carrying out of development in Area A, Area B or Area C are consistent with the objectives set out in s 7, s 8 or s 9 of the SVP Act: s 23 of the SVP Act. The City must also ensure that any policies made under the Scheme reflect the planning objectives in those sections of the SVP Act. But what regard, if any, is the decision-maker to have to the planning objectives specified in the SVP Act if they are not directly incorporated into the Scheme?

11. The long title to the SVP Act is:

    An Act to establish a committee to advise on land use planning and land development in the area known as the Swan Valley, and to prescribe planning and development objectives for the various parts of that area.

12. Part 1 of the SVP Act provides for the short title to the Act for its commencement and provides definitions for a number of the terms used. The term 'planning objectives' is not defined. Part 2 of the SVP Act provides for the delineation of the Swan Valley into Areas A, B and C. Part 3 of the SVP Act provides for general planning objectives (s 6) and the planning objectives for Areas A, B and C (s 7, s 8 and s 9). Section 6 of the SVP Act states that '[t]he general planning objectives for the Swan Valley' are as specified therein. Each of s 7, s 8 and s 9 of the SVP Act begin with the words '[t]he planning objectives for any proposed development' in the relevant area and then specifies those planning objectives. There is no further explanation as to how one is to apply the 'planning objectives' other than in relation to the SVP Committee's advice and in relation to local planning schemes and policies (as provided in Pt 4 and Pt 5 of the SVP Act). Part 4 of the SVP Act provides for the establishment and functions of the SVP Committee and Pt 5 of the SVP Act provides some general provisions, including s 23, mentioned above, which requires local planning schemes and policies to be consistent with the planning objectives for each of the Areas.

13. The ordinary meaning of 'objectives', when used as a noun, is     'an end towards which efforts are directed; something aimed at':  Macquarie Dictionary Online. Interestingly, it is only the planning objectives in s 7, s 8 and s 9 of the SVP Act that are required to be taken into account by the SVP Committee in giving advice and with which the City is to ensure the Scheme and any relevant local policies are consistent. This leaves no work for the planning objectives in s 6 of the SVP Act unless the planning objectives are something to which one should have due regard when determining development applications on land to which the SVP Act applies. It is a well-known principle of statutory interpretation that all words in legislation must prima facie be given some meaning and effect: see DC Pearce & RS Geddes, Statutory Interpretation in Australia (7^th ed, 2011) (Lexis Nexis Butterworths Australia) at 2.26.

14. In the second reading speech for the Swan Valley Planning Bill in the Assembly (Hansard, 1 December 1994, pages 8324-8326), at page 8325, the Hon Mr Lewis, Minister for Planning, explained the Bill that became the SVP Act as follows:

    The Bill defines the Swan Valley as an areas [sic] covering 7200 hectares.  The valley is classified into four planning areas - A, B, C and D.  Each area has prescribed for it clear and strict planning objectives. Only planning and development proposals which meet the objectives of the planning areas will be permitted[.]

    …

    The committee's primary function will be to provide planning advice to authorities such as the State Planning Commission, the Shire of Swan and the Swan River Trust.  All development, subdivision, rezoning and other planning proposals in the Swan Valley are required to be referred to the committee for advice.  The committee is required to provide planning advice on proposals in accordance with the objectives set out in the legislation.  The Shire of Swan is required to make provision under its town planning scheme to provide guidelines for land subdivision, development, infrastructure provision and urban design to achieve the objectives of the legislation.  The legislation empowers the Minister to direct the council to make the necessary amendments to its town planning scheme to include the guidelines should this prove to be necessary[.]

15. Extrinsic materials cannot be relied upon to displace the clear meaning of the text used:  Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [22] and [82]-[84]. However, the context and legislative purpose will cast light upon the sense in which the word of the statute are to be read: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; also see Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22]-[23].

16. Having regard to the apparent purpose of the SVP Act, as can be seen from the long title, reinforced by the second reading speech, it is more consistent with that purpose to understand s 6, s 7, s 8 and s 9 of the SVP Act as providing planning objectives to be applied to any development in the areas covered by the SVP Act. The Hon Minister who delivered the second reading speech seemed to believe that only development that positively meets the planning objectives could be approved, however, the text used in the SVP Act does not say that. Those provisions provide the 'planning objectives' for any development in the relevant areas. An objective, as stated above, is something to be aimed at, an end to which something is directed. Where the planning objectives have not been incorporated into the Scheme in a way that requires development to accord with those objectives, the decision­maker must keep in mind, or have regard to, the fact that relevant planning objectives are provided for in the SVP Act, and those planning objectives are relevant to the exercise of the decision-maker's discretion, along with other relevant matters. However, in Area B, where the planning objectives are expressly incorporated as a matter to which development in the relevant zone must accord, there is no further work for the planning objectives to do.

17. Where an application for development approval under the MRS relates to land within the Swan Valley, cl 30B of the MRS applies.  Relevantly, that clause provides:

    (1)Without limiting clause 30 of this Scheme where an application for approval relates to a development of land in the Swan Valley the responsible authority shall, unless subclause (6) applies to the application, give full particulars of the application to the Swan Valley Planning Committee.

    (2)The Committee shall, within 42 days after the day on which it receives particulars of an application, or within such longer period as the responsible authority allows, give to the responsible authority its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject.

    (3)If the Committee fails to give its advice within the time allowed under subclause (2), it shall be taken to have no advice to give on the application.

    (4)Where the responsible authority is the Commission, the Commission is required to have due regard to the advice of the Committee, but may determine the application otherwise than in accordance with that advice.

    (5)Where the responsible authority is the City of Swan, the City is to have due regard to the advice of the Committee but if the City of Swan does not accept that advice, the City of Swan is to refer the application, together with any recommendations provided by all bodies consulted, and the reasons why the advice of the Committee was not accepted by the City of Swan, to the Commission for determination[.]

18. The Forest Road site is located in the 'Swan Valley Rural' zone under LPS 17.

19. The objectives of the 'Swan Valley Rural' zone are contained in cl 4.2.13, which provides:

    The objectives of the Rural Living Zone are to -

    (a)encourage a wide range of uses, including rural residential activities that are compatible with the maintenance of the rural character of the area;

    (b)encourage viticulture and horticulture and the protection and enhancement of the natural environment;

    (c)ensure that the development and use of land accords with the planning objectives for Area C as specified in the Swan Valley Planning Act 1995.

20. At the commencement of cl 4.2 of the Scheme the use to be made of the objectives of zones is explained as follows:

    The objectives of the zones are as set out under the respective headings in this clause. Without limiting their application to any discretionary decision, it is intended that the objectives will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table.

21. The Zoning Table in LPS 17 indicates that 'Community Purpose' is classified as a 'D' use in the 'Rural Residential' zone and in the 'Swan Valley Rural' zone.  Clause 4.3.2 of the Scheme establishes that a 'D' use:

    means that the use is not permitted unless the local government has exercised its discretion by granting planning approval[.]

22. Relevant, or potentially relevant, planning instruments include:

    •Swan Valley Interim Planning Policy July 2014

    •State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7)

    •City of Swan Local Planning Strategy Nov 2007

    •City of Swan Draft Local Planning Strategy Nov 2017

    •City of Swan Local Rural Planning Strategy 2016

    •Swan Valley Planning Review Report 8 June 2018

23. The Tribunal considered the status of a number of these instruments in RSSB, at [27]-[46] and remains of the same view about the regard that can be had to those instruments as there expressed.

Issues

1. The respondent identified a number of issues that it considered were raised for consideration in these reviews.  The applicant largely disagreed with the issues proposed by the respondent.  The applicant submitted that the issues before the Tribunal should be as follows:

   Should the development application for a live-in restoration centre, requiring a change of use from Grouped Dwellings to Community Purpose be approved, having regard to the matters listed in clause 67 of the Deemed Provisions, and in particular ­

   (a)clause 67(a) - the aims and provisions of LPS 17;

   (b)clause 67(c) - any approved State planning policy, and in particular, SPP3.7;

   (c)clause 67(f) - any policy of the State, and in particular, the objectives set out in the Swan Valley Planning Act 1995 and the Swan Valley Planning Review, Kobelke June 2018;

   (d)clause 67(m) - the physical compatibility of the development with its setting;

   (e)clause 67(n) - the impact on the amenity of the locality in respect to the land use, visual amenity and traffic generation in particular;

   (f)clause 67(q) - the suitability of the land for the land use taking into account the possible risk of bushfire;

   (g)clause 67(x) - the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals.

2. The Tribunal is satisfied that the applicant's approach is consistent with the requirements of LPS 17, and as such, the Tribunal prefers the applicant's statement of the issues to that of the respondent. However, the Tribunal considers that (y) and potentially (zb) of cl 67 of Sch 2 of the LPS Regulations are also relevant or potentially relevant.

Consistency with LPS 17

1. The applicant submits that the Park Street proposal and the Forest Road proposal are consistent with the aims of LPS 17, and in particular with aim (f), which is to:

   Promote the health, safety, convenience and the economic and general welfare of the community, and to ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.

2. The applicant points to the decision in Shalom 3 at [132]-[136] where the Tribunal stated (original emphasis):

   132Seeking to address the 'methamphetamine epidemic in our nation' by rehabilitating methamphetamine and other drug users obviously involves something that is for the good of, and a beneficial outcome for, the community of Perth, the State and the country. Contrary to the City's submission, the benefit is not simply 'to individual inmates' (by which term the City referred to participants in the Shalom House rehabilitation programme living at the site).  I also do not accept the City's submissions that '[t]he benefit to those individuals is not also a benefit for either the local or any wider community, other than in the most tangential and general manner' and that there is, at most, merely an 'incidental flow-on benefit to the community'.

   133Certainly, there is individual benefit to a person who is successfully rehabilitated from drug use. There is also benefit to the person's family which has had to suffer and in some cases has been 'destroyed' by their family member's drug use. Furthermore, in my view, rehabilitation of a drug addict involves significant benefit to the wider community which is subjected to the criminal and anti-social consequences of drug use.

   134Mr Lyndon-James gave evidence that he has 'witnessed many users become drug dealers to fund their expensive habit'. As he said, the Shalom House rehabilitation programme 'prides itself in not only assisting men with fighting their drug addiction, but also removing drug dealers from the streets'.

   135Furthermore, the Tribunal takes judicial notice of the fact that because methamphetamine and other illicit drugs are expensive, drug addicts commit other criminal offences, including burglaries and other property crimes, to fund their addictions. Also, as Mr Lyndon-James said, 'the effects of methamphetamines are completely different than the effects of cannabis'. Indeed, the Tribunal takes judicial notice of the fact that methamphetamine use affects the user's behaviour and has anti-social consequences which adversely affect the wider community, as well as police and medical services.

   136Consequently, the Shalom House rehabilitation programme involves significant community benefit. It is hardly 'tangential' or merely an 'incidental flow-on benefit to the community'.

3. While it may be accepted that the Park Street proposal and the Forest Road proposal involve 'community purpose' and as such involve the provision of services for community benefit, we do not consider that this factor, on its own, makes the proposed developments either consistent or inconsistent with the aims of the Scheme.  The aims of LPS 17 are quite general and in broad terms.  We find it more useful to focus on the objectives of the relevant zones in which the proposed development is to occur.

4. Clause 4.2 of LPS 17 provides:

   The objectives of the zones are as set out under the respective headings in this clause.  Without limiting their application to any discretionary decision, it is intended that the objectives will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table.

5. As 'community purpose' is a discretionary use in each of the Rural Residential and the Swan Valley Rural zones, the Tribunal should apply the objectives of each zone to determine the appropriateness of the proposed development in each zone.

6. The respondent submits that cl 4.2 of LPS 17 causes the objectives of the zones in the Scheme to be given 'quite special weight': respondent's outline of closing submissions at para 11. It further submits that to treat the zone objectives as merely 'a consideration within the panoply of clause 67 factors would be to significantly understate their importance': respondent's outline of closing submissions at para 13.

7. In making the second of these submissions, the respondent appears to misunderstand how the decision-maker is to apply cl 67 of Sch 2 of the LPS Regulations. This provision does not require that equal weight is given to all of the matters listed. It requires due regard to be given to all of the matters there listed, to the extent each matter is relevant to the circumstances at hand. The weight to be given to each matter is for the decision-maker to determine: Minister for Aboriginal Affairs v Peko­Wallsend Ltd (1985) 162 CLR 24.

8. As stated above, the Tribunal accepts that, given the wording of    cl 4.2 of LPS 17, the Tribunal is required to apply the objectives of the relevant zone in order to determine the 'appropriateness' of a discretionary use within that zone.

9. The applicant submits that (applicant's closing submissions,          at paras 27­28):

   [t]here must be a prima facie acknowledgement that land uses that are capable of approval in a zone are consistent with the aims and objectives of the scheme and the particular zone, provided that the built form and the intensity of the land use proposed is consistent with those aims and objectives.

   Put another way, it is our submission that it is not necessary for each land use capable of approval to neatly satisfy the aims and objectives of the relevant zone ­ there must be an assumption that in granting some form of permissibility to land use, the drafters of the scheme accepted that the land use itself was acceptable.

10. The Tribunal does not accept this submission.  The Zoning Table at cl 4.3 of LPS 17 identifies the permissibility of various land uses in various zones: cl 4.3.1.  Where a proposal involves a 'P' or 'use that is permitted by the Scheme' the local government 'shall not refuse the application by reason of unsuitability of that use, but may impose conditions upon the approval of the proposal but may refuse any works involved in its discretion':  cl 4.3.2 and cl 4.3.4 of LPS 17.  Land uses that are identified as 'D' or 'A' are uses that are 'not permitted unless the local government has exercised its discretion by granting planning approval' and in the case of an 'A' use after giving special notice in accordance with cl 9.4 of the Scheme.  They are land uses capable of approval within the relevant zone.  Clause 4.2 of the Scheme specifically identifies that the objectives are to be applied in determining the appropriateness of a proposal that involves a discretionary use.  Many of the land uses defined in the Scheme are capable of being expressed in many different ways.  'Community purpose' use, is an example of just such a use.  There may be a form of 'Community purpose' that may be 'appropriate' within a particular zone, while another form would not be.

Park Street proposal

1. The Park Street site is, as indicated above, located within the Rural Residential zone.

2. The respondent submits that the Park Street proposal is not consistent with the objective of providing for low density residential development and associated activities in comprehensively planned estates:  cl 4.2.10(a) of LPS 17.  It is submitted that the live-in (predominantly residential) character of the Park Street proposal conflicts with the type of residential development that objective (a) contemplates and involves the habitation of a greater number of people than would otherwise be contemplated by this objective.

3. The Tribunal has before it evidence from two town planners, which includes opinion evidence about the consistency of the Park Street proposal with the objectives of LPS 17.  Mr Neil Teo is a consultant town planner who has worked in the area of planning since 1999.  Mr Lex Edwin Barnett is also a consultant town planner with approximately 39 years of experience.

4. Mr Barnett states that the Park Street proposal does not meet objective (a) of the Rural Residential zone because it does not, in itself, provide for low density residential development or associated rural residential activities:  Exhibit 45 at para 8.1.2.  However, in his opinion, the proposal does not conflict with the objectives of the zone and as such it is not inconsistent with those objectives.

5. In considering whether the Park Street proposal is inconsistent with objective (a) of the Rural Residential zone, Mr Teo analysed the 'constituent activities' of the proposal and identified the permissibility of each of these constituent activities as if they were each a separate land use proposed to occur on the site:  Exhibit 47 at paras 34-41.  When questioned about this methodology, Mr Teo admitted that he had never used such an analysis previously in his career as a town planner (ts 28-47, 14 December 2019), rather it seems he made it up for the purposes of this case.  Mr Barnett advised the Tribunal that he has never used such a methodology in his years of practice.  This accords with the experience of the two members of the Tribunal who themselves have qualifications and experience in town planning.  Mr Teo's approach flies in the face of the well-understood in planning law concerning the approach to the classification of land uses, and the need to determine whether there is one proposed use, or two or more distinct uses: see Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157. The Tribunal is not persuaded that Mr Teo's 'constitute activities' approach is a methodology used in the field of town planning at all. To the extent that Mr Teo purports to give opinion evidence in relation to this approach, he is offering opinions outside of his field of expertise and proffers no qualifications or expertise from which the opinion could be offered. The Tribunal accordingly places no weight on this evidence.

6. The Tribunal finds that the Park Street proposal does not provide for low density residential development or associated residential activities.  Neither party asserts otherwise.  Neither does the proposal encourage the rehabilitation of degraded areas through selected replating of indigenous flora and the creation and enhancement of habitat for ingenious fauna:  cl 4.2.10(b) of LPS 17. 

7. The final objective of the Rural Residential zone is to recognise various environmental characteristics and ensure, as far as practicable that these characteristics are not compromised by development and use of the land:  cl 4.2.10(c) of LPS 17.  There is no suggestion by either party that the Park Street proposal is in any way inconsistent with this objective.

8. The respondent focuses on the 'residential' nature or aspect of the proposal and submits that on this basis, because the proposal does not provide for low density residential development it is inconsistent with objective (b).  To understand the correctness or otherwise of this submission, it is necessary to go back a step and ask what it is that objective (b) is focusing attention on.

9. Clause 4.2.10(b) of LPS 17 refers to 'low density residential development'.  That is not a term that is defined in the Scheme, nor is it a defined land use category.  Having regard to cl 1.7 of LPS 17, one may go to the 'Residential Design Codes'.  That term is defined in Sch 1 of LPS 17 as 'the Codes, as approved by the Governor and published in the Government Gazette as State Planning Policy No 3.1'.               State Planning Policy No. 3.1 is no longer operative, however that document did include a definition of 'Residential development' in appendix 1, which is:

   Development of permanent accommodation for people, and may include all dwellings, the residential component of mixed-use development, and residential buildings proposing permanent accommodation.

10. The Tribunal has already determined, in Shalom 3, that the Park Street proposal involves a 'Community purpose' use and does not involve a 'Residential building' within the meaning of LPS 17.  The fact that people are accommodated in a place on a non-permanent basis does not make the use of that place 'residential development' as the definition requires permanent accommodation.  The Park Street proposal does not involve 'residential development' within the meaning of LPS 17.  The Tribunal is not persuaded that the Park Street proposal is inconsistent with objective (b) for the Rural Residential zone just because it includes an aspect of non-permanent accommodation.  The Zoning Table shows that a number of uses that involve or include an aspect of non­permanent accommodation of people are discretionary uses within this zone.

11. As indicated above, the Park Street proposal does not provide for low density residential development or associated rural activities.  Such a proposal would be very 'appropriate' for the Rural Residential zone, so long as it did not involve any inconsistency with the other two objectives of the zone.  On the basis that the Park Street proposal does not provide for the things sought to be provided in objective (a), but there is no basis to believe that it is inconsistent with objectives (b) and (c), which would tend to make the proposal inappropriate in the zone, the Tribunal finds that it is neither appropriate nor inappropriate in the zone.

Forest Road proposal

1. The Forest Road site is, as indicated above, located within the Swan Valley Rural zone.

2. Neither party asserts that the Forest Road proposal involves or promotes the Swan Valley as a horticultural, recreational, tourism or landscape resource.  The language of objective (a) in cl 4.2.13 of LPS 17 is such that development that does not meet this objective must be carefully considered.  The objective is for the zone to 'primarily' be used for the four specified purposes.  This does not mean that development can only be for one of those purposes, the word used is 'primarily' not 'solely' or 'only'.

3. The respondent submits that the evidence before the Tribunal reveals that traditional agricultural activities of the Swan Valley, especially viticulture, are under great pressure because land in the Swan Valley is increasingly being used for competing uses.  The evidence relied upon is that of Mr Joseph Gaudet, the Vice President of the Swan Valley Tourism Alliance Inc. and Ms Alyson Anne Kunid, a member of the Grape Growers Association of WA Inc.  Ms Kunid says (Exhibit 18 at paras 27 and 29:

   The Grape Growers Association is convinced that the relatively affordable land in the Swan Valley, due to its enforced under­development, makes it attractive to a range of stakeholders who don't depend on local roots[.] 

   …

   In the Grape Growers Association's point of view, many hectares of Swan Valley Planning Act land have already been taken up by places of worship and more 'Community Purposes' uses which have no specific Swan-Valley-community-building function, and would take away productive agriculture while not contributing directly to the rural character or vision of the Swan Valley

4. Mr Gaudet also says that the Swan Valley is economically attractive for all sorts of non-viticulture uses because it is relatively affordable land.

5. Ms Kunid also says that it is very challenging to grow grapes as a business and that there is enormous global competition:  Exhibit 18 at para 24.  It is difficult to understand, if that is the case, how one can draw any inference about the effect of using land for purposes other than viticulture on the ongoing success of viticulture in the area.

6. In this case, the Forest Road proposal is carried on within an existing dwelling.  It is not removing land from a horticultural, recreational, tourism or landscape resource.  On the view conducted by the Tribunal, Forest Road and its surrounds has the appearance of being primarily a horticultural, recreational, tourism and landscape resource.  The Tribunal is not persuaded that the use of an existing group dwelling for the proposed 'Community purpose' use, in the way proposed by Shalom, will have any impact on the primary use of the zone for the four purposes specified in objective (a).  The degree of appropriateness of the Forest Road proposal is not as high as it would have been if it involved one of the four purposes specified in cl 4.2.13(a) of LPS 17 but we are not persuaded that it is inappropriate.

7. There is no suggestion that the Forest Road proposal provides for rural living within the Swan Valley, which is the second objective for the Swan Valley Rural zone. 

8. In relation to objective (c), the Forest Road site does contain some high quality horticultural soils however two thirds of the site is         'not ideal for horticultural pursuits' because it is susceptible to flooding:  Exhibit 42 para 7.7.  There may be some plastic clays on the Forest Road site in the vicinity of the existing dwelling, however it has not been identified 'strategically as providing an important source of plastic clays':  Exhibit 42 para 7.13.  Mr Jason David Hick, an environmental scientist/consultant, indicates that the high quality soil and the clay are mainly located in the area on which the existing building is located.  The Tribunal is not persuaded that the Forest Road proposal involves a development that would jeopardise its current or future use to any extent greater than has already occurred.

9. The Tribunal finds that the Forest Road proposal is neither appropriate nor inappropriate having regard to cl 4.2.13(b) and (c).

10. The final objective of the Swan Valley Rural zone is to ensure that the development and use of land accords with the planning objectives for Area B as specified in the SVP Act.  The Tribunal canvassed how those planning objectives should be understood in the RSSB case at [53]­[62]. The respondent urges the Tribunal to reconsider one aspect of the reasoning in RSSB: that the first objective in s 8 of the SVP Act is concerned with whether the proposed development is incompatible with or puts at risk any existing viticulture. The respondent invites the Tribunal to take a 'broader view of protection of viticulture' (respondent's outline of closing submissions at para 22), but does not explain on what basis. Having considered again the terms of s 8 within the context of the SVP Act as a whole, and having regard to the purpose of the legislation, we remain of the view that objective 1 in s 8 is focused on the protection of existing viticulture.

11. The Forest Road site is located in near vicinity with working vineyards, and as such it is necessary to consider whether the Forest Road proposal has, or will have, any adverse impact on existing viticulture. 

12. The Black Swan Winery is located at 3 Forest Road, Henley Brook, to the west of the Forest Road site.  Ms Robyn Meloury is one of the owners of the Black Swan Winery.  It is her evidence that they spray vines on their property through the year during the growing season, from August till about January:  Exhibit 17 at para 24.            Ms Meloury says that there is only a limited window of opportunity to spray at the right time and in the right conditions.  She says they are already constrained by the restaurant but that she feels they will be further constrained by when they can spray if they have to have regard to the existence of 20 men occupying the Forest Road site. 

13. Mr Bruno De Tastes is the owner of Little River Wines Winery & Café, located at 2 Forest Road, Henley Brook.  Mr De Tastes says that most of his property consists of vineyards, including a vineyard near the Forest Road site.  He says that grape growing requires frequent spraying, which can only be done in calm conditions.  Mr De Tastes says some spray drift is 'almost inevitable':  Exhibit 52 at para 35.  It is his view that 'having a large number of people in a live-in arrangement in very close proximity to agricultural spraying could lead to a situation where a traditional industry of the Swan Valley becomes restricted, or I have to be worried about lawsuits':  Exhibit 52 at para 36.

1. The less appropriate nature of the Forest Road proposal weighs significantly against approval of the proposal.  In addition, the submissions weigh against approval, although the weight that can be given to the submissions is limited given their generalised focus and lack of engagement with the actual proposed development.  On the other hand, in this case, the positive community benefit and the lack of any adverse amenity impact weigh heavily in favour of the approval of the Forest Road proposal.  In this case it is a matter of a 'finely balanced exercise of discretion' as to what is the correct and preferable determination:  Jensen v Nationwide News Pty Ltd [No 12] [2019] WASC 250 at [26]. The Forest Road site is not particularly suitable for viticulture because of the risk of inundation and the lack of a suitable water supply. The site is also screened from nearby tourist facilities by vineyards. The outward appearance of the buildings on the Forest Road site will remain the same, keeping its rural residential appearance. There is a significant community benefit arising from the Forest Road proposal and there is a proven lack of any negative impact on the amenity of the locality. Ultimately we are persuaded that the correct and preferable decision is that the Forest Road proposal should be approved subject to conditions.

Conditions of approval

Park Street proposal

1. The respondent's revised without prejudice conditions 1-4, 8, 9, 12 and 13 are agreed to by the applicant:  see Exhibit 51 and Exhibit 57).  These conditions should be imposed on the approval of the Park Street proposal.

2. The applicant objects to proposed condition 6, which requires a water tank to be maintained in fit state to be used to support firefighting services, on the basis that it is not required.  The applicant submits that the existence of access to a reticulated hydrant means that there is no need for any additional water for fire-fighting purposes, citing element 4.1 of the Guidelines for Planning in Bushfire Prone Areas.  The respondent has not presented any evidence or submission in support of this condition.  The Tribunal is not satisfied that the proposed condition is necessary or reasonable and as such it should not be imposed.

3. The applicant objects to condition 10, which relates to the installation of a new or modified sewerage treatment apparatus, and suggests that the condition should be replaced with a condition worded as follows:

   The approved development shall be connected to an approved onsite effluent disposal system.

4. There is no evidence before the Tribunal on which it could conclude that there is any problem with the existing sewerage treatment apparatus at the Park Street site.  The respondent's proposed condition 10 is very long, wordy and unduly complex.  We are satisfied that the wording proposed by the applicant would allow the respondent to require the applicant to satisfy it that the existing apparatus is satisfactory, and if not, to ensure that it becomes so.  The Tribunal is satisfied that the version of condition 10 proposed by the applicant should be imposed.

5. Proposed condition 11 requires a traffic management plan to be lodged with the respondent.  The applicant objects to this on the basis that it does not fairly and reasonably relate to the proposed development.  The applicant submits that the vehicle movements associated with the proposed development do not give rise to the need for a traffic management plan.  The Tribunal is not satisfied that there is any adverse amenity impact caused by the bus movements.                The Tribunal is not satisfied that the proposed condition is necessary or reasonable and as such it should not be imposed.

6. The applicant proposes one additional condition requiring a Bushfire Management Plan to be submitted and complied with at all times.  The respondent has not made any submissions in relation to this proposed condition.  Having regard to the evidence of Mr Rowe, the Tribunal is satisfied that the proposed condition is appropriate and reasonable.  This condition should be imposed.

Forest Road proposal

1. The respondent's proposed without prejudice conditions 1-3, 6 and 7 are agreed to by the applicant:  see Exhibit 8 and Exhibit 9).  These conditions should be imposed.

2. The respondent's proposed condition 4, which relates to sewerage treatment apparatus, should be replaced with the applicant's proposed condition 4 for the same reasons as in relation to the Park Street proposal stated above.

3. The respondent's proposed condition 5, which relates to a traffic management plan, should not be imposed for the same reasons as in relation to the Park Street proposal stated above.

Orders

In DR 299 of 2015, the Tribunal makes the following orders:

1.The application is allowed.

2.The respondent's decision made on 26 September 2018 to refuse the application to use units 1-3, 157 Park Street, Brabham for a Community Purpose, which the applicant describes as the Shalom House program, is set aside and instead the application for planning approval is allowed, subject to the following conditions:

1.This approval is personal to the West Australian Shalom Group Inc. and does not run with the land.

2.The use of the land by West Australian Shalom Group Inc. for 'Community Purpose' is listed as follows:

(i)Maximum programme participant occupancy of the premises shall be limited to 35 for a minimum period of three weeks per participant.

(ii)Access and egress from the property by programme participants is by arrangement of the West Australian Shalom Group Inc.

(iii)Programme participants shall be provided with professional counselling, access to medical practitioners and a supervised work programme by the Western Australian Shalom Group Inc.

3.Within 60 days of the date of this approval the applicant/owner is to submit to the City of Swan a Bushfire Hazard Level assessment by a Bushfire Planning practitioner (as defined under the Western Australian Planning Commission (WAPC) guidelines 'Planning for Bushfire Protection').

4.Where the Bushfire Hazard Level assessment identified the premises to be subject to a Bushfire Attack level above 'Low-Risk', the approved development is to comply with the bushfire resistant construction requirements of the Building Code of Australia.

5.Where the Bushfire Hazard Level assessment identifies the premises to be subject to a Bushfire Attack Level above 'Low-Risk' the applicant/owner is to subject an Emergency Evacuation Plan for the approved 'Community Purpose' use, prepared by a Bushfire Planning Practitioner (as defined under WAPC guidelines 'Planning for Bushfire Protection') to the satisfaction of the City of Sean on advice from the Department of Fire and Emergency Service.

6.A total of nine car parking bays shall be provided onsite each bay measuring 5.4 metres by 2.5 metres, clearly marked on the ground and served by a minimum 6 metres wide paved access way.  Where the access way abuts a building or other barrier, a minimum width of 6.5 metres is required.

7.The approved development shall be connected to an approved onsite effluent disposal system.

8.External lighting shall comply with the requirements of AS 4282 ­ Control of Obtrusive Effects of Outdoor Lighting.

9.Any additional development, which is not in accordance with the application (the subject of this approvals) or any condition of approval, will require further approval.

10.The applicant proposes the additional following condition:

'Within 60 days of the date of this approval the applicant/owner is to submit a Bushfire Management Plan prepared by a Bushfire Planning Practitioner (as defined in 'Guidelines for Planning in Bushfire Prone Areas') to the satisfaction of the City of Swan on advice from the Department of Fire and Emergency Services.  The approved Bushfire Management Plan is to be complied with at all times'.

In DR 340 of 2016, the Tribunal makes the following orders:

1.The application is allowed.

2.The respondent's decision made on 26 September 2018 to refuse the application to use 52 Forest Road, Henley Brook for a Community Purpose, which the applicant describes as the Shalom House program, is set aside and instead the application for planning approval is allowed, subject to the following conditions:

1.This approval is personal to the West Australian Shalom Group Inc. and does not run with the land.

2.The use of the land by West Australian Shalom Group Inc. for 'Community Purpose' is limited as follows:

(i)Maximum programme participant occupancy of the premises shall be limited to 20 for a minimum period of three weeks per participant.

(ii)Access and egress from the property by programme participants is by arrangement of the West Australian Shalom Group Inc.

(iii)Programme participants shall be provided with professional counselling, access to medical practitioners and a supervised work programme by the Western Australian Shalom Group Inc.

3.A total of 10 car parking bays shall be provided onsite each bay measuring 5.4 metres by 2.5 metres and where not facilitated within the existing garages, clearly marked on the ground and served by a minimum 6 metres wide paved access way.  Where the access way abuts a building or other barrier, a minimum width of 6.5 metres is required.

4.The approved development shall be connected to an approved onsite effluent disposal system.

5.External lighting shall comply with the requirements of AS 4282 ­ Control of Obtrusive Effects of Outdoor Lighting.

6.Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval

In DR 79 of 2019, the Tribunal makes the following orders:

1.The application is allowed.

2.The respondent's decision made on 20 March 2019,  under the Metropolitan Region Scheme, to refuse the application to use units 1-3, 157 Park Street, Brabham for a 'Community Purpose', which the applicant describes as the Shalom House program, is set aside and instead the application for planning approval is allowed, subject to the following conditions:

1.This approval is personal to the West Australian Shalom Group Inc. and does not run with the land.

2.The use of the land by West Australian Shalom Group Inc. for 'Community Purpose' is listed as follows:

(i)Maximum programme participant occupancy of the premises shall be limited to 35 for a minimum period of three weeks per participant.

(ii)Access and egress from the property by programme participants is by arrangement of the West Australian Shalom Group Inc.

(iii)Programme participants shall be provided with professional counselling, access to medical practitioners and a supervised work programme by the Western Australian Shalom Group Inc.

3.Within 60 days of the date of this approval the applicant/owner is to submit to the City of Swan a Bushfire Hazard Level assessment by a Bushfire Planning practitioner (as defined under the WAPC guidelines 'Planning for Bushfire Protection').

4.Where the Bushfire Hazard Level assessment identified the premises to be subject to a Bushfire Attack level above 'Low-Risk', the approved development is to comply with the bushfire resistant construction requirements of the Building Code of Australia.

5.Where the Bushfire Hazard Level assessment identifies the premises to be subject to a Bushfire Attack Level above 'Low-Risk' the applicant/owner is to subject an Emergency Evacuation Plan for the approved 'Community Purpose' use, prepared by a Bushfire Planning Practitioner (as defined under WAPC guidelines 'Planning for Bushfire Protection') to the satisfaction of the City of Sean on advice from the Department of Fire and Emergency Service.

6.A total of nine car parking bays shall be provided onsite each bay measuring 5.4 metres by 2.5 metres, clearly marked on the ground and served by a minimum 6 metres wide paved access way.  Where the access way abuts a building or other barrier, a minimum width of 6.5 metres is required.

7.The approved development shall be connected to an approved onsite effluent disposal system.

8.External lighting shall comply with the requirements of AS 4282 ­ Control of Obtrusive Effects of Outdoor Lighting.

9.Any additional development, which is not in accordance with the application (the subject of this approvals) or any condition of approval, will require further approval.

10.The applicant proposes the additional following condition:

'Within 60 days of the date of this approval the applicant/owner is to submit a Bushfire Management Plan prepared by a Bushfire Planning Practitioner (as defined in 'Guidelines for Planning in Bushfire Prone Areas') to the satisfaction of the City of Swan on advice from the Department of Fire and Emergency Services.  The approved Bushfire Management Plan is to be complied with at all times'.

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

MS L EDDY, SENIOR MEMBER

7 OCTOBER 2019