NOTICE OF MEETING
PLANNING COMMITTEE
Members of the Planning Committee are advised that a meeting of the Committee will be held in Council Chambers, Civic Building, 83 Mandurah Terrace, Mandurah on: Tuesday 4 July 2017 at 5.30pm
MARK R NEWMAN Chief Executive Officer 28 June 2017
Committee Members: Deputies: Councillor Peter Rogers (Chairman) Councillor Field (1st Deputy Member) Councillor Jackson Councillor Lee (2nd Deputy Member) Councillor Tahlia Jones Councillor Knight Hon Councillor Riebeling Councillor Lynn Rodgers Councillor Wortley
NOTE: Should an Elected Member wish to view any location listed on this Agenda, officers will be available in the Councillor's Lounge at 9.00 am on Tuesday 4 July 2017.
AGENDA
1 OPENING OF MEETING AND ANNOUNCMENT OF VISITORS
2 ATTENDANCE AND APOLOGIES
3 IMPORTANT NOTE: Members of the public are advised that the decisions of this Committee are referred to Council Meetings for consideration and cannot be implemented until approval by Council. Therefore, members of the public should not rely on any decisions of this Committee until Council has formally considered the resolutions agreed at this meeting. Planning Committee Agenda: 4 JULY 2017 PAGE 2
4 ANSWERS TO QUESTIONS TAKEN ON NOTICE Nil
5 PUBLIC QUESTION TIME Public Question Time provides an opportunity for members of the public to ask a question of Council. For more information regarding Public Question Time, please telephone 9550 3706 or visit the City’s website www.mandurah.wa.gov.au.
6 PRESENTATIONS AND ANNOUNCEMENTS BY CHAIRMAN
7 DEPUTATIONS Any person or group wishing to make a 5-minute Deputation to the Committee meeting regarding a matter listed on this agenda for consideration must first complete an application form. For more information about making a deputation, or to obtain an application form, please telephone 9550 3706 or visit the City’s website www.mandurah.wa.gov.au.
NB: Persons making a deputation to this Committee meeting will not be permitted to make a further deputation on the same matter at the successive Council meeting, unless it is demonstrated there is new, relevant material which may impact upon the Council’s understanding of the facts of the matter.
8 CONFIRMATION OF MINUTES: 2 MAY 2017
(NB: It is the Elected Members’ responsibility to bring copies of the previous Minutes to the meeting if required).
9 DECLARATIONS OF FINANCIAL, PROXIMITY AND IMPARTIALITY INTERESTS
10 QUESTIONS FROM ELECTED MEMBERS WITHOUT DISCUSSION 10.1 Questions of which due notice has been given 10.2 Questions of which notice has not been given
11 BUSINESS LEFT OVER FROM PREVIOUS MEETING
Planning Committee Agenda: 4 JULY 2017 PAGE 3
12 REPORTS:
1. Proposed Amendment to Town Planning Scheme No. 3 - 1 - 13 Rezoning of Lot 21 Southern Estuary Road and Pt Lot 7 Dunkeld Drive Herron from ‘Rural’ to ‘Rural Residential’ Section 76 Order by Minister for Planning 2. Proposed Amendment to Town Planning Scheme No. 3: 14 - 19 Adopt for Advertising - Lot 1175 Old Coast Road Herron – Additional Use 3. Third Party Appeal Rights in Planning – WALGA Discussion 20 - 39 Paper - Council Position
13 LATE AND URGENT BUSINESS ITEMS
14 CONFIDENTIAL ITEMS
15 CLOSE OF MEETING
Report from Director Sustainable Development to Planning Committee Meeting of 4 July 2017
1. SUBJECT: Proposed Amendment to Town Planning Scheme No 3 - Rezoning of Lot 21 Southern Estuary Road and Pt Lot 7 Dunkeld Drive, Herron from ‘Rural’ to ‘Rural Residential’: Section 76 Order by Minister for Planning CONTACT OFFICER/S: Ben Dreckow AUTHOR: Ann Harrop FILE NO: Amendment 137
Summary
In July 2016, Council considered a request to rezone Lot 21 Southern Estuary Road and Pt Lot 7 Dunkeld Drive, Herron from ‘Rural’ to ‘Rural Residential’ and resolved not to support this amendment due to the proposal not adequately addressing the Guidelines for Planning in Bushfire Prone Areas and State Planning Policy 2.5 Land Use Planning in Rural areas, and being inconsistent with the South Metropolitan Peel Sub-Regional Planning Framework.
An order has been made by the Minister for Planning pursuant to Section 76(1) of the Planning and Development Act 2005 following representation from the owner of Lot 21 Southern Estuary Road and Pt Lot 7 Dunkeld Drive, Herron, to initiate an amendment to rezone the subject property from ‘Rural’ to ‘Rural Residential’.
The direction made by the Minister for the Council to initiate the amendment does not represent any formal support for the proposal, but represents the Minister’s view that the proposed amendment is worthy of further consideration via the scheme amendment process.
In order to comply with the direction given by the Minister for Planning, a resolution of Council is required to initiate an amendment to Town Planning Scheme No. 3.
Disclosure of Interest
Nil
Location
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Property Details:
Applicant: Rowe Group
Owner: A. Angelkov
Scheme No 3 Zoning: Rural Peel Region Scheme Zoning: Rural Lot Size: 94.3 hectares and 7 hectares Topography: Undulating Land Use: Rural
Previous Relevant Documentation
• G.21/07/16 12 July 2016 Council resolved not to support a proposal to rezone Lot 21 Southern Estuary Road and part Lot 7 Dunkeld Drive, Herron from Rural to Rural Residential. Background
The City first received correspondence requesting that Council initiate an amendment to Town Planning Scheme No. 3 to rezone Lot 21 Southern Estuary Road and Pt. Lot 7 Dunkeld Drive from the ‘Rural’ zone to the ‘Rural Residential’ zone in March 2016.
The request was accompanied by an Environmental Assessment report, a Black Cockatoo assessment report and a Bushfire Management plan which were referred to the Department of Parks and Wildlife (DPaW) and the Department of Fire and Emergency Services (DFES) for comment.
A zoning of Rural Residential under the current provisions of Town Planning Scheme No 3 would require lot sizes in accordance with the following:
1. A Subdivision Guide Plan is required; 2. No further subdivision unless, based on land capability and ability to overcome site constraints, that development will not impact the area and precinct objectives as outlined in the Local Rural Strategy; 3. Lot sizes shall be no less than 2 hectares unless otherwise specified in Appendix 4; 4. Subdivision shall comply with the requirements of the Coastal and Lakelands Planning Strategy and EPA Bulletin 864; and 5. For areas located within the Lake Clifton catchment, generally an average lot size of 5 hectares with a 2 hectare minimum.
Prior to Council’s consideration of the Amendment, the applicant was advised that the following additional information prior to the matter being considered by Council:
• A revised Bushfire Management Plan (BMP) demonstrating compliance with State Planning Policy 3.7 – Planning in Bushfire Prone Areas (WAPC 2015), including a revised Bushfire Hazard Level assessment and a Bushfire Attack Level Contour Map for the development. This request was based on comments received by the Department of Fire and Emergency Services (DFES) regarding the BMP submitted with the amendment request, who had advised that the BMP lacked sufficient detail to demonstrate how the bushfire protection criteria have been addressed.
• A modified Black Cockatoo report addressing the inclusion of Pt Lot 7 Dunkeld Drive in the assessment and acknowledging the presence of western ringtail possum on the lots and the impact of development on their habitat.
• The proposal being referred to the (federal) Department of Environment for assessment under the Environmental Protection and Biodiversity Conservation Act.
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This request was based on the potential for the development of the site to impact on Floristic Community Type (FT) 26a, a listed Threatened Ecological Community, and the suitable feeding habit of the federally listed Black Cockatoos (Baudin’s Black Cockatoo, Carnaby’s Black Cockatoo and Forest Red-tailed Black Cockatoo). It was noted that the site had not been identified within the Rural Residential Class of Action within the draft Perth and Peel Green Growth Plan for 3.5 million (Green Growth Plan).
Subject to the above information being received, the applicant was advised that support may be provided that allows future subdivision of the lots resulting in a minimum lot size of 10ha. This would be achieved by including specific requirements regarding the subject land within Appendix 4 Scheme 3. The 10ha minimum lot size requirement was recommended based on the Southern Mandurah Rural Structure Plan which was adopted by Council in March 2015.
Notwithstanding the above, the applicant’s requested that Council consider the Amendment in its current form without the provision of additional information. Council considered the matter at its meeting on 12 July 2016 where the following was resolved:
“That the proposed Scheme Amendment of Lot 21 Southern Estuary Road and part lot 7 Dunkeld Drive, Herron from Rural to Rural Residential not be supported for the following reasons:
1. The proposal does not adequately address State Planning Policy 3.7 Planning in Bushfire Prone Areas and associated Guidelines for Planning in Bushfire Prone Areas as outlined by the Department of Fire and Emergency Services;
2. The proposal does not adequately address the provisions of State Planning Policy 2.5 Land Use Planning in Rural Areas and draft State Planning Policy 2.5 Rural Planning Policy with regard to proposals for rural living proposals which include but are not limited:
2.1 The potential subdivision and development arising from an outcome of the land being rezoned, 2.2 development requirements, such as suitable lot sizes are not being included in the local planning scheme; 2.3 The land is not predominantly cleared; and 2.4 based on the details provided to date, the loss of remnant vegetation through clearing for building envelopes, bushfire protection and fencing results in environmental values being compromised;
3. The proposal does not appear to be consistent with the South Metropolitan Peel Sub-Regional Planning Framework as the site is shown as Rural and that new rural residential lots/areas beyond those identified in the framework are unlikely to be supported.
Supporting the above, the report by officers on the Scheme Amendment provided the following information based on the current planning framework:
Coastal and Lakelands Planning Strategy (WAPC - 1999)
The Strategy presents a broad strategy for the future use and development of the area and a guide for more detailed planning. Its main aim is to protect the valuable environmental and landscape values of the area while permitting compatible development and rural uses. In terms of Rural Residential development the strategy states:
• Rural-residential areas committed by existing subdivision or zoning are adopted and considered satisfactory for the strategy area. Areas specifically proposed in local rural strategies for rural- residential purposes, with the exception of private holdings located inside the perimeter of the Yalgorup National Park or abutting Lake Clifton, are also adopted by this strategy. • Possible extension of the rural-residential zoning of land at the head of Harvey Estuary is proposed subject to environmental assessment and reservation of land in accordance with System 6 recommendations.
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A maximum overall site density of one dwelling per three hectares is suggested here as the land is outside the Lake Clifton catchment area. • Within the catchment to Lake Clifton, a maximum overall site density of one lot per 5ha (with a minimum lot size of 2ha) is adopted by this strategy. Where possible, it is recommended that the principle of an overall site density is adopted in preference to a rigid minimum lot size. This enables lot size variation in response to site conditions. • For freehold land between Old Coast Road and Lake Clifton south of existing subdivisions in the Mount John Road area, a specific “Highway Environs” zone is recommended. This is in recognition of the area’s visual significance, lake proximity and limited potential for specialised tourist/commercial uses. Within this zone a minimum lot size of five hectares should also apply and controls relating to lake setbacks, protection of fringing vegetation, and enhancement of landscape values will be required.
The subject lots are classified as being within the Lake Clifton Catchment Boundary and are identified as 'Rural Residential' with lots sizes being not less than 5 hectares with an absolute minimum of 2 hectares.
Southern Mandurah Rural Structure Plan
The Structure Plan has two key principles:
• Updating land-use and subdivision provisions with the aim of increasing protection to Lake Clifton and the Harvey Estuary, via updating and replacing references to the Coastal and Lakelands Planning Strategy as the statutory planning control for new subdivision lot sizes and Council’s Lake Clifton/Herron Structure Plan as a guide to new subdivision layouts. • Vegetation protection (linking with the Biodiversity Strategy) balanced with the ensuring Council meeting its obligations for bushfire management for privately owned land.
The purpose and intent of the Rural Residential Zone (recognised within this Structure Plan) is to identify areas with environmental sensitivities that warrant specific protection including areas directly adjoining the Harvey Estuary and Lake Clifton and lands containing significant large areas of local natural vegetation. Other environmental constraints within this zone include proximity to identified wetlands, flood hazard areas, Vasse soils and acid sulphate soils which mandate specific control over future subdivision and development.
Furthermore, the Structure Plan proposed to introduce provisions that would reduce the lot yield from the planning framework currently in place on the basis of:
• Reducing lot and dwelling yield around Lake Clifton and the Peel-Harvey Estuary; • Minimising lot and dwelling yields in moderate and high risk bushfire areas; • Maximising vegetation retention arising from the Biodiversity Strategy.
Under this Structure Plan, the subject lots are identified with a combination of Rural Residential (10ha minimum) and Rural Residential (5ha minimum). For the lots included in this request, implementation of these lot sizes would potential yield approximately 10 lots.
It was intended that the Southern Mandurah Rural Structure Plan would have statutory effect, however on the basis of changes made to the Planning and Development (Local Planning Schemes) Regulations 2015 this could not take place. However, the Structure Plan retains its status as a strategic document adopted by the Council and is being used to inform the new local planning scheme, and utilised as a guiding local strategy when considering rezoning proposals in the locality.
The proposal to rezone the subject sites to Rural Residential, and by reference in Scheme 3 applies the Coastal and Lakelands Planning Strategy requirements of a 2 hectare minimum and average of 5 hectares which the Southern Mandurah Rural Structure Plan sought to modify.
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Perth and [email protected] and South Metropolitan and Peel Sub-Regional Planning Framework
These strategic planning documents aim to accommodate 3.5 million people by 2050. It is recognised that this document has not yet been finalised, however the City is required to have `due regard' for it when considering proposals within the footprint. With regard to 'Rural' zoned land, the report states, in part, the following:
"Within the South Metropolitan Peel sub-region, approximately 5500 hectares of land is available for rural residential sub-division and development. A further 2000 hectares, previously identified for rural residential development have not been included in the draft framework, primarily, but not limited to potential impacts of nutrients of the Peel-Harvey estuarine system and the lack of demonstrated need for additional rural residential land.
The key priority will be to preserve rural land in close proximity to major population centres, with rural living proposals to be considered by exception within planning strategies/schemes, where topography, environmental or servicing constraints do not permit full urban development, where bush fire risk is not extreme and where environmental attributes are protected.
In essence, there is a need to ensure that rural living opportunities remain, however these need to be balanced against broader consolidation, environmental and servicing considerations"
Under the draft plan, the subject lots are identified as 'Rural' which appears in the documents as distinctly different to the 'Rural Residential' designation.
Council’s submission on these documents sought clarification on these designations, but also provided support for the plan in this regard should the plans be recommending that future subdivision potential in this area is further reduced from the current planning framework (primarily being the Coastal and Lakelands Planning Strategy). No further clarification has been provided by the Department on this matter at this stage.
Notably, these lots were not identified within the Perth and Peel Green Growth Plan (Strategic Assessment for Perth and Peel Regions) Draft Action Plan B: Rural Residential. This does not necessary mean that the amendment cannot proceed, but there is a clear direction from the State Government that future rural residential subdivision is being limited from the ‘business as usual’ approach prior to the progression of these planning and environmental reports.
State Planning Policy 2.5— Rural Planning Policy.
This Policy states, in part for rural land in the Perth and Peel planning regions that:
(a) Rural living proposals will be considered by exception in planning strategies and schemes, where topography, environmental or servicing constraints do not permit full urban development and where bush fire risk is not extreme and biodiversity values are protected...."
Both the existing policy (2010) and draft modifications (2015) to this policy outline in great detail measures to be considered for ‘rural living’, and proposals to amend local planning schemes need to take into account the raft of measures prior to proceeding.
Of note, Section 5.3(c)(ix) of the 2015 revised draft states rural living subdivision should only be supported where:
“The land is predominantly cleared of remnant vegetation, or the loss of remnant vegetation through clearing for building envelopes, bushfire protection and fencing is minimal and environmental values are not compromised…”
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Based on this policy, it was considered that the supporting information submitted with the request to rezone the subject lots had not adequately demonstrated suitable provisions to be provided in the local planning scheme to control future subdivision, that the bushfire risk is not extreme and that vegetation and biodiversity values have been protected.
State Planning Policy 3.7— Planning in Bushfire Prone Areas
This Policy lists that one of its aims is to reduce the risk to people, property and infrastructure by encouraging a conservative approach to strategic planning, subdivision, development and other planning decisions proposed for bushfire-prone areas.
Under this policy, "there is a presumption against approving any development that will result in the introduction or intensification of development or land use in an area that has or will, on completion, have an extreme bush fire hazard level" unless it is considered to be minor or unavoidable development.
The proposed amendment documentation included a Bushfire Management Plan. A desktop review of the Bushfire Management Plan by officers and the context of State Planning Policy 3.7 and it is considered premature to adopt the amendment due section 5.2.4 which states local planning scheme amendments are to:
‘Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change’
SPP3.7 is supported by Guidelines for Planning in Bushfire Prone Area at for local planning scheme amendments require a Bushfire Hazard Assessment or Building Attack Level Contour Map (where lot layout is known) and a Bushfire Management Plan.
A Bushfire Hazard Assessment categorises land as having a low, moderate or extreme bushfire hazard level. Different hazard levels may be assigned to different parts of individual lots.
A Bushfire Attack Level (BAL) Contour Map is a map of the subject lot/s illustrating the potential radiant heat impacts and associated indicative BAL ratings in reference to any vegetation remaining within 100 metres of the assessment area after subdivision works are complete. It is typically used for bushfire risk assessment at the subdivision stage of the planning process, but is also appropriate for strategic planning proposals where the lot layout of a proposal is already determined.
A Bushfire Management Plan was submitted with the rezoning request and was referred to the Department of Fire and Emergency Services (DFES) for review and comment with the following advice received:
General observations • The proposed development is on a site designated as bushfire prone on the Map of Bush Fire Prone Areas, and therefore SPP 3.7 applies to the proposal. • It should be noted that the Bushfire Management Plan (BMP) has been prepared in accordance with the Planning for Bushfire Protection Guidelines (May 2010) which were in effect at the time the assessment was prepared. • The Bushfire Hazard Level assessment does not align to existing standards and needs to be revised. • A BAL Contour Map for the development, in line with Table 1 of the Guidelines, should be provided as the lot layout is known. • The proposal needs to demonstrate to the fullest extent possible how the bushfire protection criteria have been addressed. The current BMP does not demonstrate how the criteria has been met only that there is intent to address the criteria. • Under policy measure 6.7 “there is a presumption against approving any development that will result in the introduction or intensification of development or land use in an area that has or will, on completion, have an extreme BHL” unless it is considered to be minor or unavoidable development.
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Bushfire Hazard Level (BHL) Assessment • The BHL assessment does not apply the appropriate methodology as set out in the Guidelines. • The bushfire hazard should be mapped... Separation distances should be included to aid assessment of the bushfire hazard. There is a requirement for a 100 metre buffer to be applied to extreme and moderate hazard vegetation types. • The BHL assessment should include the bushfire prone vegetation ‘as is’ for all stages of development. • There are no photographs of the vegetation or other supporting documentation to validate the vegetation classifications.
Environmental Considerations
Numerous Environmental Protection Authority (EPA) policies and bulletins are applicable to the consideration to rezone the site including Bulletin 864 Strategic Environmental Advice (Dawesville — Binningup) and Bulletin No 20 - Protection of naturally vegetated areas through planning and development.
Notably Bulletin 864 states that
• Development on the East side of Yalgorup Lake is highly constrained; • No water abstraction is permitted; • All existing vegetation on the east side of Lake Clifton to be retained; • The Coastal/Lakelands Planning Strategy should be reviewed and revised; and • No further subdivision should occur in this area.
Bulleting 20 sets out the EPA's views and expectations for the design of urban and pen-urban development proposals in order to protect naturally vegetated areas. The EPA expects protection of naturally vegetated areas to be considered as early as possible in the planning process, and addressed at each stage of planning. Furthermore, the EPA has a general presumption against the clearing of regionally significant natural areas. Where development over naturally vegetated areas is unavoidable, development should be focused within cleared parts of the site, followed by more degraded areas, as determined by site survey.
A Black Cockatoo Assessment Report lodged with the request for rezoning the site which was forwarded to the DPaW for review and comment with advice received is as follows:
• The sites are within a buffer of a confirmed breeding area therefore breeding is possible within the lots depending on the suitability of the hollows recorded in the report. • The methods used in the report for the identification of habitat trees and hollows potentially suitable for black cockatoos are the currently accepted methods however report states “it should be noted that the survey was completed outside of the main breeding season of all three species of black cockatoo”. • The survey being outside of the breeding season is not an issue as long as the appropriate evidence of breeding has been searched for • Surveys conducted during the cockatoo breeding season may be able to confirm which species of cockatoo is using a hollow (in cases where this additional information is required). • Agree that it is difficult to determine potential suitability of a hollow unless it is possible to look into the hollow. • There was no evidence of cockatoo use seen on or near the hollows recorded during the habitat assessment, the trees within the lots are probably not currently being used by cockatoos for breeding. • However potentially suitable hollows that do not show evidence of use, may be used in the future. • Hollows assessed as being unsuitable may become suitable in the future. • It should be noted that the presence and condition of understorey is unlikely to affect the use of a site by cockatoos for breeding or roosting.
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Officer’s review of the Environmental Assessment Report identified that Floristic Community Type (FCT) 26a, a listed Threatened Ecological Community (TEC), has been identified in the south west corner of the proposed development and concluded the following:
• The FCT is in very good condition and the flora report recommends that this area be retained in conservation with any proposed development. • The FCT cannot be adequately protected within the proposed development design, where (proposed) Lot 16 covers almost the entire FCT. In the current plan, a portion of the FCT would need to be cleared for the building envelope. In order to avoid clearing and maintain a no clearing buffer of at least 30m from the potential TEC (with the exception of formalising existing management areas for firebreaks) a reduction in the number of lots will be required.
• The site contains suitable habitat for several listed species including the federally listed Black Cockatoo's (Baudin's Black Cockatoo, Carnaby's Black Cockatoo, Forest Red-tailed Black Cockatoo). The presence of the TEC and Black Cockatoo's suggests that the proposal has the potential to have a significant impact on matters of national environmental significance under the Environmental Protection and Biodiversity Conservation Act 1999. Based on this assessment the proposal should be referred to the Department of Environment for assessment.
Summary
In summary, the proposed rezoning and implementation of the indicative Subdivision Guide Plan as contained within the supporting documentation were not supported in its current from as the proposed lot sizes did not address the issues identified above in terms of bushfire management, are not a minimum of 10 hectares and do not provide adequate protection for the identified Threatened Ecological Community located on the site.
Comment
In the time since Council’s resolution of July 2016 not to support the rezoning of the subject lot, the following actions have taken place:
Local Planning Scheme 12
Local Planning Scheme No 12 has been adopted by Council in January 2017. This Scheme identifies the site with a zoning of ‘Rural Smallholdings’ with a minimum lot size of 10 hectares, reflecting the recommendations of the Southern Mandurah Rural Structure Plan. The adoption of the local planning scheme and the recommendation of the Structure Plan highlights that some form of subdivision has been supported, however not in the form proposed by the applicant.
Scheme 12 is awaiting consent to advertise by the Western Australian Planning Commission and Minister for Planning.
Amendment 136 to Town Planning Scheme No 3
Council adopted for final approval Amendment 136 to Town Planning Scheme as an intermediate implementation of the recommendations of the Southern Mandurah Rural Structure Plan and the Local Biodiversity Strategy. Amendment 136 proposes to change the Rural Residential zone requirements for subdivision to provide for the following:
1. Subdivisional lot sizes shall be not less than 5 hectares, unless otherwise specified within Appendix 4. Lot sizes nevertheless shall be dependent upon the assessment of land capability, bush fire hazard, biodiversity conservation and environmental constraints.
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2. The following matters shall be considered when assessing an application for subdivision within the Rural Residential zone:
(a) The significance and conservation value of remnant vegetation including the retention and protection targets for Biodiversity as set out in the Local Planning Strategy;
(b) The existing levels of the site;
(c) The appropriateness of the site for future development;
(d) An assessment of the bushfire risk against the relevant State Planning Policy and associated guidelines, demonstrating compliance with bushfire protection criteria whilst not impacting on biodiversity targets;
Should the Amendment progress as proposed, the provisions above would apply to the site once Amendment 136 progresses to final gazettal. Whilst these provisions are an improvement on the outcomes than the existing planning framework, it is officer’s contention that this site should have a minimum lot size greater than 5 hectares.
Proposed Amendment
Following Council’s resolution, the applicant has made representation to the Minister for Planning seeking a review of Council’s decision not to support the rezoning of the subject land to Rural Residential, in accordance with Section 76 of the Planning and Development Act 2005. A revised bushfire management plan was submitted with the Section 76 request.
Following representation by the applicant, the Minister has determined that the City failed to adopt an amendment to a local planning scheme where an amendment ought to be adopted and has directed the City to initiate an amendment to Town Planning Scheme no. 3 to rezone Lot 21 Southern Estuary Road and Pt Lot 7 Dunkeld Drive, Herron from ‘Rural’ to ‘Rural Residential’ for the following reasons:
“1. I consider that the City of Mandurah has not provided reasonable justification as to why this amendment should not be adopted for advertising purposes.
2. I consider that the proposal to rezone Lot 21 Southern Estuary Road and a portion of Lot 7 Dunkeld Drive, Herron from Rural to Rural Residential is not vexatious and, prima facie, may have merit. It is therefore appropriate that the proposal be adopted for advertising purposes to allow for public comment, and further detailed assessment to be undertaken through the scheme amendment process.”
Further, the Minister has noted within the order that “this direction for Council to initiate the amendment does not represent any formal support for the proposal, but simply represents my view that the proposed amendment is worthy of further consideration via a scheme amendment process”.
A resolution of Council is now required to initiate an amendment to Town Planning Scheme No 3 in accordance with the Ministers direction.
MEAG/MCCAG Comment
The proposal will be referred to MEAG during the advertising period.
Consultation
In accordance with the Planning and Development (Local Planning Schemes) Regulations 2015, the proposed amendment will be advertised for a period of not less than 60days.
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Relevant government authorities (including Department of Fire and Emergency Services and Department of Biodiversity, Conservation and Attractions) and property owners in the vicinity of the proposal will be notified of the amendment as well as a notice being placed in the local papers.
Statutory Environment
Under s76 (b) of the Planning and Development Act 2005
“if the Minister is satisfied on any representation that a local government- has failed to adopt an amendment to a local planning scheme proposed by owners of any land, in a case where an amendment to a local planning scheme ought to be adopted then the Minister may order the local government to prepare and submit for the approval of the Minister an amendment to a local planning scheme”.
In this instance, the Minister has made such an order and as such the Council has been directed to initiate the Scheme Amendment.
There is no right of appeal for the relevant Local Government against the Ministers decision.
Upon initiation of Amendment 137, the amendment will be forwarded to the Environmental Protection Authority in accordance with Section 81 of the Planning and Development Act 2005.
The proposed amendment is classified as a ‘complex’ amendment under the Planning and Development (Local Planning Schemes) Regulations 2015 and will be required to be publicly advertised for a period of not less than 60 days.
During this period the proposal will be referred relevant authorities including the Department of Fire and Emergency Services and the Department of Biodiversity, Conservation and Attractions (formally Department of Parks and Wildlife) for formal comment. This will enable the City to obtain further clarification on issues regarding bushfire management and vegetation protection which were not addressed to the City’s satisfaction in the applicant’s initial submission.
Following the conclusion of the consultation period, Council will again have an opportunity to consider the proposed amendment where it can resolve to:
• Support the amendment without modification; • Support the amendment with modifications to address outstanding issues; or • Not support the amendment.
Policy Implications
The Southern Mandurah Rural Structure Plan was adopted by Council in March 2015 following an extensive consultation period. This plan identifies the subject land as a combination of ‘Rural Residential’ (10ha minimum) and ‘Rural Residential” (5ha minimum).
It is recognised that this Structure Plan, whilst adopted by Council in March 2015, has not been approved by the WAPC. However, this was based on changes made to the Planning and Development (Local Planning Schemes) Regulations 2015 and the form and function of structure plans, rather than the planning merits of the plan.
As a result, the Structure Plan is considered to be a strategic document adopted by the Council and has been used to inform the draft Local Planning Scheme No. 12 which was adopted by Council in January 2017, and will be utilised as a guiding local strategy when considering rezoning proposals such as Amendment No. 137.
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Economic Implications
Nil
Strategic Implications
The following strategies from the City of Mandurah Strategic Community Plan 2013-2033 are relevant to this report:
Environment: • Protect and ensure the health of the natural environment and waterways. • Factor climate change predictions into land-use planning, building design and future Council decisions.
Infrastructure: • Facilitate the provision of diverse housing stock.
Conclusion
Following the Minister for Planning’s direction to initiate an amendment to Town Planning Scheme No. 3 to rezone Lot 21 Southern Estuary Road and Pt Lot 9 Dunkeld Drive, Herron, from ‘Rural’ to ‘Rural Residential’, a resolution of Council is required.
It is therefore recommended that Amendment No. 137 be adopted by Council for the purposes of advertising.
It is noted within the Minister’s order that the ‘this direction for Council to initiate the amendment does not represent any formal support for the proposal, but simply represents my view that the proposed amendment is worthy of further consideration via a scheme amendment process’.
Council will have further opportunity to consider the merits of the proposal at the conclusion of the consultation period.
NOTE:
• Refer Attachment 1 Site Context Plan
RECOMMENDATION
1. That in accordance with Regulation 35(1) of the Planning and Development (Local Planning Scheme) Regulations 2015, the following amendment be adopted for advertising:
“PLANNING AND DEVELOPMENT ACT 2005
RESOLUTION DECIDING TO ADOPT AMENDMENT TO LOCAL PLANNING SCHEME
CITY OF MANDURAH TOWN PLANNING SCHEME – NO 3
AMENDMENT NO 137
Resolved that the Council, in pursuance of Section 72 of the Planning and Development Act 2005, amends Town Planning Scheme No 3 by:
(a) Rezoning Lot 21 Southern Estuary Road and portion of Lot 7 Dunkeld Road, Herron from “Rural” to “Rural Residential”.
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(b) Amending the Scheme Maps accordingly.
Dated this 11th day of July 2017 Chief Executive Officer.”
The Amendment is complex under the provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 for the following reason(s):
(a) The amendment has been made to comply with an order made by the Minister under section 76 of the Act.
2. That, in accordance with Section 81 of the Planning and Development Act 2005, the above- mentioned amendment be forwarded to the Environmental Protection Authority for its assessment under the provisions of the Environmental Protection Act 1986.
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2. SUBJECT: Proposed Amendment to Town Planning Scheme No 3: Adopt for Advertising – Lot 1175 Old Coast Road Herron – Additional Use CONTACT OFFICER/S: Ben Dreckow AUTHOR: Tom Foulds FILE NO: SA138
Summary
Council is requested to adopt an Amendment to Town Planning Scheme No.3 (the Scheme) for the purposes of undertaking public consultation.
In summary the proposed Amendment seeks to modify the Scheme to allow for ‘Dog Kennels’ as a discretionary land use for Lot 1175, No 2835 Old Coast Road, Herron. The City has received an application to develop Dog Kennels at the subject site, however based on current planning framework the proposal is a use which is not permitted (X use) given that it is not listed within the Rural Residential zone.
The Southern Mandurah Rural Structure Plan identifies Dog Kennels as being an SA use, however given that the Structure Plan has not progressed to final approval it cannot be used to determine an application. The draft Scheme identifies ‘Animal Establishment’ (i.e. a Dog Kennel) as a discretionary land use (A use) within the Rural Residential zone
The proposed amendment will require the identification of the subject property within Appendix 2 – Additional Uses of the Scheme and inserting ‘Dog Kennels’ as an ‘SA’ use, which means Council may approve the development of Dog Kennels within the subject site subject to advertising.
It is recommended the Council adopt the Amendment for advertising.
Disclosure of Interest
Nil
Location
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Property Details:
Applicant: City of Mandurah
Owner: Botsky Pty Ltd
Scheme No 3 Zoning: Rural Residential Peel Region Scheme Zoning: Rural Lot Size: 28.0432 ha Topography: Ranges 4m AHD to 15m AHD Land Use: Occupied by Horse Training Track
Previous Relevant Documentation
• G.6/01/17 24 January 2017 Council resolved to adopt the draft Local Planning Scheme for advertising.
• G.19/3/15 24 March 2015 Council resolved to grant final approval of the Southern Mandurah Rural Structure Plan.
• G.48/11/09 24 November 2009 Council resolved to grant final approval of Amendment 109 to rezone the subject site from Rural to Residential.
Background
Town Planning Scheme 3 (‘Scheme 3’) was gazetted in July 1999 and has been amended a number of times since in response to the needs of the City, updates in the planning framework and through applicant driven rezoning requests. More recently, Council has adopted a new Scheme – Local Planning Scheme No 12 (‘Scheme 12’) to replace the Scheme 3 which is awaiting consent to advertise by the Western Australian Planning Commission.
The subject site is zoned Rural Residential, and is located on Old Coast Road on the Southern boundary of the City’s local government area. To the West is Lake Clifton and to the East is the Peel Estuary, the subject site is surrounded by properties zoned Rural.
The draft Scheme identifies ‘Animal Establishment’ (i.e. a Dog Kennel) as a discretionary land use within the Rural Residential zone. As such, the proposed Amendment puts into place land use provisions that are intended to be imposed through the draft Scheme.
Amendment 109 to Scheme 3 was gazetted in March 2011 and rezoned the subject site from Rural to Rural Residential essentially facilitating the creation of an additional 5 lots. The current and prospective land owner have no current intention to subdivide the lot in the short term.
Surrounding properties remain Rural and as such could facilitate the consideration of Dog Kennels as a discretionary land use (SA use, must be advertised).
The following operations and/or approvals exists on nearby land:
• Lot 52 (No 14) Clifton Downs Road, Herron is located approximately 2 km from the subject site and received Approval in 1994 for Dog Kennels.
• Lot 21 (No 352) Southern Estuary Road, Herron abuts the subject site to the east, however the Dog Kennels building is located approximately 1.4 km from the proposed Dog Kennels location, and received retrospective Approval in 2011.
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Both sites identified above are zoned Rural, and as such Dog Kennels can be considered as a discretionary land use (SA use), must be advertised.
Comment
The proposed Amendment intends to introduce a specific land use to the subject site, which is currently prohibited to become a discretionary land use.
Planning Framework
The City has received an application to develop Dog Kennels at the subject site. Under the provisions of the current Scheme, the site is zoned Rural Residential and Dog Kennels is a land use that is not permitted (X use). As a use not permitted, there is no discretion for Council to grant an approval.
The Southern Mandurah Rural Structure Plan was adopted by Council in March 2015, and at the time was intended to provide subdivision, land use and development standards as a development control plan for the Southern Mandurah Rural Area. However, due to changes in the broader planning framework (i.e. the introduction of the Planning and Development Regulations in October 2015) the Structure Plan could not be progressed to final approval by the State Government.
Amendment 136 was recently approved by Council which seeks to modify subdivision standards within Rural and Rural Residential properties.
The Structure Plan identifies Dog Kennels as being an SA use, however given that it did not receive final approval from the State Government it cannot be used to determine an application. Council has adopted draft Scheme 12 using the Structure Plan as a strategic guide, given that Council has adopted the outcomes in subdivision, land use and development standards contemplated.
The draft Scheme 12 identifies ‘Animal Establishment’ (i.e. a Dog Kennel) as a discretionary land use (A use) within the Rural Residential zone.
The proposed Amendment is consistent with the Southern Mandurah Rural Structure Plan as a strategic document, and the draft Scheme 12 which is anticipated to be advertised in the short term.
In order to facilitate the consideration of the current development application, a separate amendment to Scheme 3 is considered appropriate to progress.
Current Development Application
The current development application to develop Dog Kennels at the subject site can be summarised as follows:
• Boarding of up to 46 dogs during peak times, accommodated within a purpose built facility consisting of 36 enclosures and reception / service areas;
• Building proposed to be constructed of double brick and insulation, and utilises environmental mitigation measures such as noise insulation and waste management;
• Building area is 238 square metres with a height of 4.8 metres, setback 89 metres from the closest boundary (eastern boundary);
• Location of building requires removal of existing shed, therefore does not require removal of vegetation.
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With respect to the operation of the facility, the applicant has provided a detailed Management Plan. In order to alleviate environmental and noise concerns the applicant has provided the following supporting information:
• Acoustic Assessment – calculates noise impacts associated with the development and recommends noise mitigation measures to be implemented.
• Odour Mitigation – building proposed to be cleaned daily with animal waste being disposed of via animal waste disposal unit)
• Wastewater System is proposed to accommodate the kennel building only.
Should the proposed Amendment be considered for final approval at a later date, further detailed assessment of the current development application will take place.
MEAG Comment
Should Council adopt the proposed Amendment for advertising purposes, the proposal will be presented to a future MEAG meeting for consideration.
Consultation
The proposed Amendment, pursuant to the Planning and Development Regulations (2015) is considered to be a ‘Standard Amendment’ and as such, is required to be advertised in accordance with Part 5, Division 3 r.47. That is, subject to the Environmental Protection Authority (EPA) consent, the proposed Amendment must be;
• Published in a newspaper circulating in the Scheme area; and • Display a copy of the notice in the offices of the Local Government; • Give a copy of the notice to each public authority the Local Government considers may be affected by the Amendment; and • Publish a copy of the notice on the Local Government Website; and • Advertise the Scheme as directed by the Commission and in any other way the Local Government considers appropriate.
The consultation period for a standard amendment must be a minimum of 42 days.
Statutory Environment
In October 2015, the Planning and Development (Local Planning Schemes) Regulations came into force and dictates the way Schemes are made, interpreted and amended. There are three types of amendment to a Scheme, ‘basic’, ‘standard’ or ‘complex’. The proposed Amendment is consistent with the ‘standard’ description in Part 5, Division 1 r.34 in that:
• It is an amendment that is consistent with the objectives of the relevant zone; • It is consistent with a local planning strategy; • It is consistent with the Region Scheme; • It will have a minimal impact on land in the Scheme not subject to this amendment; and • It does not result in any significant environmental, social, economic or governance impacts on land in the Scheme area.
Policy Implications
Nil
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Economic Implications
The proposed Amendment will give the potential for the development of ‘Dog Kennels’ within the subject site.
Strategic Implications
The following strategy from the City of Mandurah Strategic Community Plan 2013 – 2033 is relevant to this report:
Identity: • Encourage active community participation and engagement.
Conclusion
Council is requested adopt a proposed amendment to Town Planning Scheme No.3 (the Scheme) for the purposes of undertaking public consultation.
In summary the proposed amendment seeks to modify the Scheme to allow for a ‘Dog Kennel’ as a discretionary land use for Lot 1175, No 2835 Old Coast Road, Herron. The City has received an application to develop Dog Kennels at the subject site, however based on current planning framework the proposal is a use which is not permitted (X use).
It is recommended the Council adopt the proposed amendment for advertising.
RECOMMENDATION
1. That in accordance with Regulation 35(1) of the Planning and Development (Local Planning Scheme) Regulations 2015, the following amendment be adopted for advertising:
“PLANNING AND DEVELOPMENT ACT 2005
RESOLUTION TO ADOPT AMENDMENT TO LOCAL PLANNING SCHEME
CITY OF MANDURAH TOWN PLANNING SCHEME NO 3
AMENDMENT 138
Resolved that the local government pursuant to section 72 of the Planning and Development Act 2005, amend the above Local Planning Scheme by:
(a) Amending the Scheme Maps to include an Additional Use overlay on Lot 1175, No 2835 Old Coast Road, Herron and inserting the following provisions into Appendix 2 – Additional Uses:
NO LAND BASE ADDITIONAL DEVELOPMENT PARTICULARS ZONE USES STANDARDS/CONDITIONS 18 Lot 1175, No Rural Dog Kennels 1. An Acoustic 2835 Old Coast Residential Assessment shall be Road, Herron prepared and submitted by the applicant with the submission of a development application, and shall
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assess noise impacts associated with the development. Any noise mitigation measures are to be implemented as a condition of development approval.
2. A minimum lot size of 5 hectares applies.
The Amendment is standard under the provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 for the following reasons.
• It is an amendment that is consistent with the objectives of the relevant zone; • It is consistent with a local planning strategy; • It is consistent with the Region Scheme; • It will have a minimal impact on land in the Scheme not subject to this amendment; and • It does not result in any significant environmental, social, economic or governance impacts on land in the Scheme area.
Dated this 11th Day of July 2017 Chief Executive Officer.”
2. That, in accordance with Section 81 of the Planning and Development Act 2005, the above- mentioned amendments be forwarded to the Environmental Protection Authority for its assessment under the provisions of the Environmental Protection Act 1986.
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3. SUBJECT: Third Party Appeal Rights in Planning – WALGA Discussion Paper Council Position CONTACT OFFICER/S: Ben Dreckow AUTHOR: Ann Harrop FILE NO: TBC
Summary
The Western Australian Local Government Association (WALGA) has released a discussion paper on third party appeal rights in planning in order to consult with Local Government members regarding WALGA’s current policy position on the matter in Western Australia.
WALGA’s current policy position against third party appeals was formed in 2008, however since that time substantial changes have been made to the decision making framework within WA prompting the Association to again initiate a discussion on the role of third party appeals in the Western Australian Planning Commission.
WALGA’s discussion paper examines the impact of the changes in the WA planning framework on the arguments for and against third party appeals and seeks feedback from the Local Government planning community.
This report provides a summary of WALGA’s Discussion Paper and an overview of the impacts changes to the planning system have had on decision making within the City. This report recommends that the City advises WALGA that Council is prepared to further consider the matter following the release of a discussion by the Department of Planning / Western Australian Planning Commission. In the interim, it is recommended that Council provide support of limited third party appeal rights.
Disclosure of Interest
Nil
Previous Relevant Documentation
Nil
Background
In 2008 WALGA formed a policy position against the introduction of Third Party Appeal Rights.
The main arguments against the proposal were:
1. The current strategic and statutory planning processes, and consideration of applications by Councils, already takes into account the views of affected parties and the community generally.
2. Third party appeals could be lodged because of vexatious or commercial interests, not because of genuine planning matters.
3. Such appeals would cause significant delays and additional costs for development, as even lodgement of an appeal would put a development on hold; and
4. Additional planning appeals would place a further burden on already stretched Local Government resources.
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Since this time there have been significant changes to the WA planning framework including:
• Changes to section 76 of the Planning and Development Act 2005 to give the Minister for Planning the power to order a Local Government to prepare or adopt an amendment to a local planning scheme.
• The introduction of Development Assessment Panels which has removed some of Local Governments decision making power.
• The introduction of ‘Deemed Provisions’ for local planning schemes in the Planning and Development (Local Planning Schemes) Regulations 2015 have resulted in the local government no longer making determinations on structure plans but provide comments to the Western Australian Planning Commission.
In light of these changes, WALGA have released a discussion paper (Refer Attachment 1) regarding third party appeals and are seeking feedback from local government members in order to determine if their current position requires review.
In summary the discussion paper identifies the following arguments for and against the introduction of third party appeals:
Arguments for Third Party Appeals
1. Neighbouring landowners, occupiers and members of the community often have a very legitimate interest in whether development occurs and in what form, as any new development has impacts on existing neighbourhood character, amenity, infrastructure and property values.
2. Third Party appeals have the potential to increase avenues for public engagement with planning, and may deliver better planning decisions as an empowered public, with increased opportunities for participation, can result in improved planning outcomes.
3. Third party appeals may encourage developers to deal with the local community in a more engaging manner and places pressure to concede or improve design elements where appropriate and reasonable to do so.
4. Third party appeals are a means by which decision making can be checked and provide property owners a recourse to an independent review body as a safeguard against inconsistent decisions. Third party appeals are purported to discourage corrupt behaviour between developers and local government.
Arguments against Third Party Appeals
1. Third party appeal rights, if not clearly defined may allow individuals to take part in planning decisions in which they have no direct interest. This could lead to appeals being made on non planning grounds, rather than the merit or substance of the proposal.
2. The appeals process can shift decision making power away from Local Government and away from locally elected representation.
3. Sufficient opportunities already exist for third party participation in the planning process including public consultation in the formation of policy, structure plans, local planning schemes and for certain land uses as identified within a scheme. Public consultation and participation in policy formation and strategic planning often results in better policy and greater certainty in the process and outcome. Third party appeals tend to encourage adversarial rather than collaborative debate on planning issues and could create planning outcomes that are not in the longer term interest of the community.
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4. Third party appeals are not always representative of the broader community. The Discussion Paper highlights that research has found that the majority of people lodging third party appeals come from a well-organised, well-connected and well-resourced segments of the community, which raises the question of how representative these objections are of the wider community.
5. Third party appeals may result in increased costs and delays and appeals being lodged because of vexatious or commercial interests which will create inefficiency, uncertainty and could ultimately act as a brake on investment and economic growth.
6. As the volume of objections to a development application increases, so too does the likelihood of an appeal. Additionally, failure to determine an application are strongly related to high objection numbers. Therefore, applications which receive the highest number of objections are also the applications which are most likely to be appealed, and are also most likely to be the applications which Council fails to determine.
7. The existence of third party appeals may lead members of the community to believe that the number of objections in and of itself is a way of preventing developments they do not support rather than the need for objections to be based on a valid planning concern. As a result the community’s expectations about how it can influence the planning system may not be met.
In addition the discussion paper considers criteria which may be used to determine when a third party appeal may be allowed. For instance, it may be that third party appeals be limited to only certain types of applications involving the use of discretionary powers, or instances where the decision maker has advertised the development. Based on a summary of Third Party appeal process that exist in other jurisdictions, the discussion paper identifies the following primary criterial for allowing third party appeal rights:
• Excluding vexatious or commercial interest appeals, and any appeals made on non-genuine planning matters; • Excluding appeals by those parties who did not previously make a submission; • Excluding appeals where an application meets ‘deem to comply’ requirements, and no discretion has been excised. • Excluding appeals for some cases of minor development. • Having a short window in which to appeal (example 14 days)
A summary of the Third Party Appeal Rights by State and Territory is provided within the discussion paper.
Advice at the federal level, in 2005, an advisory body, the Development Assessment Forum (DAF) developed a leading practice Model that sets out ‘tracks’ for different development assessment processes.
The Model states that “opportunities for third-party appeals should not be provided where applications are wholly assessed against objective rules and tests”, and that “opportunities for third party appeals may be provided in limited other cases”
In this way, the DAF Model hopes to avoid unnecessary review where objective criteria has already been established by a consultative process. The recommended next steps, as identified by the DAF Model, of developing guidelines that establish consistent and appropriate criteria for the review of assessment decision has not to date been undertaken.
In 2011, the Productivity Commission released a research report entitled Performance Benchmarking of Australian Business Regulation: Planning, Zoning and Development Assessments. The Commission identified the importance of transparency and accountability and stated that planning decisions could be enhanced through:
• Ensuring that planning scheme amendments have at least as much public scrutiny as is given to development assessments; and
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• The appropriate availability of appeals for development assessment and planning scheme amendments, including limited third party appeals.
Further to this the report stated that:
“While appeal rights may extend approval times, they have an important role to play in a complex area subject to considerable discretion, competing policy objectives and vulnerable to special dealing. Rather than prohibit appeals, efforts would be better focused on ensuring good notification and engagement, clearly explaining trade-offs made and providing less formal conflict resolution and review mechanisms so that the resort to appeals is less likely.
Practices which appear to reduce vexatious third party appeals include clear identification of appellants and their grounds for appeal, the capacity for courts to award costs against parties seen to be appealing for anti-competitive purposes, and prohibition of appeals if the party did not put in an objection to the development application. These would reduce incentives to game the appeals systems to intentionally slow down developments.”
Comment
Western Australia is the only state in Australia that doesn’t allow for any form of third party appeal within its planning framework. Where a decision is thought to be made incorrectly in terms of the legality of a decision, there is an opportunity for a third party to request a judicial review through the Supreme Court of WA. This has a much narrower focus than a third party appeal in that the Court will assess the process and manner in which the decision was made, as opposed to whether the decision was correct or best outcome. This form of challenge can be prohibitively expensive however has been utilised by both individuals and Councils in WA.
The current position of the State Government is that sufficient opportunity for the local community to have a say in what happens in their neighbourhood exists within the current planning framework. The Planning and Development Act 2005 requires public consultation for local and regional planning schemes and amendments, State Planning Policies, local planning polices and structure plans. In addition local planning schemes provides for public consultation for those uses listed as a discretionary land use.
In general this position is supported, however as identified by the Productivity Commission transparency and accountably within the planning system is important in providing an effective and efficient planning system.
In a 2009 paper, Judge Christine Trenorden (of the Environment, Resources and Development Court in South Australia) argued that the issue of whether Third Party Appeal rights are necessary, should be based not on the capability of the decision maker to determine an application, but rather the community’s confidence in their ability. When the decision maker is appointed by an external body, the community’s confidence in them to make a decision in the best interest of the community now and in the future is diminished. Any lack of transparency around the decision making process further erodes confidence.
With the recent changes to the planning framework as outlined above, there has been a shift in some decision making power away from local government and subsequently local representation. This may result in a reduction in the general public’s confidence that planning decisions are being made in the best interests of the community. In recent times, at least one approval issued by the Development Assessment Panel was overturned by judicial review brought before the Supreme Court. This outcome may provide an argument for the introduction of some third party appeal rights. It should however be noted a review by the Supreme Court can only be on the power of the relevant authority to make a decision, and not on the merits of the decision.
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The arguments against third party appeal rights in Western Australia largely relate to increased costs and timeframes associated with appeals, and the concern that their introduction would lead to a ‘flood of appeals’. When examining other jurisdictions however, this evidence is not necessarily borne out. In Victoria for example, third party appeals account for 20 per cent of the appeal cases considered by the Victorian Appeals Tribunal.
Officers Assessment
Third Party Appeal rights is that it is a complex issue, with strong arguments for and against their implementation. The introduction of third party appeal rights is likely to result in appeals against Local Government decisions which in turn would require additional resources to administer, resource and defend these decisions. Whilst this is the case, the introduction of third party appeals would also result in greater public confidence in the planning system, particularly in instances where decision making is shifted away from local representation. For this reason, support for limited third party appeal rights is recommended.
As a result, should third party appeals be considered within Western Australia, it is officer’s recommendation that the following criteria are recommended to be applied:
1. Appellants and their grounds of appeal be publically released
2. The capacity for costs to be awarded against parties determined to have lodged vexatious, commercial interest based or non-planning based appeals.
3. Appellants must have previously lodged an objection (which means that such appeals can only be in respect to an application that is required be advertised, which suggests some level of discretion is expected to made in the decision making process).
4. Appellants having a maximum 14 days to lodge an appeal, together with an appropriate fee; and
5. Appeals not applying to decisions to single dwellings and associated ancillary structures made under the Residential Planning Codes.
Prior to the introduction of Third Party Appears, officers expect that the Department of Planning / Western Australian Planning Commission would release a discussion paper and implementation options which would allow for further consideration by Council.
Statutory Environment
In accordance with Part 14 of the Planning and Development Act 2005, appeals against a decision made by a relevant authority may only be made where an applicant is aggrieved by a refusal, or by conditions imposed on an approval in the following circumstances:
• Where a decision is made under an interim development order • Where a decision is made in a planning control area • Where a decision is made under a local planning scheme • Where a direction has been made under s214 of the Act regarding unauthorised development; and • Where a decision has been made under Part 10 of the Act which relates to subdivision
The Act does not currently provide for third party appeals as a right.
Policy Implications
Feedback on the discussion paper will be used to formulate WALGA’s policy position on third party appeals in Western Australia.
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Economic Implications
The introduction of third party appeals rights would result in additional costs to the City. Additional resources would likely be required to administer, resource and potentially engage legal counsel to defend (or appeal) these decisions. Without proper resources, such a situation could lead to delays in making planning decisions, which in turn, would create inefficiency, uncertainly and increased costs.
Strategic Implications
The following strategies from the City of Mandurah Strategic Community Plan 2013-2033 are relevant to this report:
Leadership: • Develop and empower our community leaders to determine, guide and advocate for the City’s future • Ensure that the City as an organisation behaves as a model corporate citizen • Demonstrate leadership on major regional, state and national issues
Organisational Excellence: • Ensure the City has the capacity and capability to deliver services and facilities that meet community expectations. • Deliver excellent governance and financial management • Develop a strong brand of leading local government that meets community expectations
Conclusion
Recent changes to the planning decision making framework within Western Australia and a shift in some decision making power away from Local Government has reignited the debate surrounding third party appeals in Western Australia.
Strong arguments exist both for and against third party appeals in Western Australia. The introduction of third party appeal rights is likely to result in appeals against Local Government decisions which in turn would require additional resources to administer, resource and defend these decisions. Whilst this is the case, the introduction of third party appeals would also result in greater public confidence in the planning system, particularly in instances where decision making is shifted away from local representation.
Following consideration of the arguments for and against third party appeal rights, limited support for third party appeals is recommended, whilst acknowledging that prior to third party appeal rights being introduced into Western Australia, the Department of Planning / Western Australian Planning Commission would release a discussion paper, allowing for further consideration by Council.
NOTE:
• Refer Attachment 1 Third Party Appeal Rights in Planning Discussion Paper
RECOMMENDATION
That Council
1. Advises the Western Australian Local Government Association that it is prepared to support further consideration of third party appeals in Western Australia for development applications, structure plans and planning scheme amendments upon a discussion paper being released by the Department of Planning / Western Australian Planning Commission citing options and examples of third party appeals.
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2. Advises the Western Australian Local Government Association that Council’s current position is that:
(a) Appellants and their grounds of appeal be publically released;
(b) The capacity for costs to be awarded against parties determined to have lodged vexatious, or non-planning based appeals;
(c) Appellants must have previously lodged an objection (which means that such appeals can only be in respect to an application that is required be advertised, which suggests some level of discretion is expected to made in the decision making process);
(d) Appellants having a maximum 14 days to lodge an appeal, together with an appropriate fee;
(e) Appeals not applying to decisions made in relation to Single Dwellings and associated ancillary buildings under the Residential Planning Codes.
Report 03 Page 26 Third Party Appeal Rights in Planning Discussion Paper
Report 03 Page 27 1.0 In Brief At its December 2016 meeting, State Council requested a review of the WALGA Policy position in relation to Third Party Appeal Rights for planning decisions. The decision making environment has changed since the WALGA made its policy position in 2008, and therefore a review of the current position is warranted.
This paper provides background on the development of WALGA’s current policy position and a review of the arguments both for and against third party appeals. A literature review was carried out to establish the basis of each argument.
2.0 Background
2.1 Background to WALGA Policy Position Unlike most of the other jurisdictions in Australia, Western Australia is unique in that no Third Party Appeal Rights exist under the Planning and Development Act 2005, although in the past some Local Government planning schemes allowed them. The last Local Government to allow Third Party Appeals was the City of Albany, however with the introduction of the City’s new local planning scheme in 2014, which removed Third Party Appeal Rights, there is no longer any Third Party Appeal Rights for planning in Western Australia.
The introduction of Third Party Appeal Rights has been considered by member Councils on several occasions over the last few decades. For instance, Third Party Appeal Rights were considered in 2001 during debate on the new planning appeal system and again the following year during the State Government’s consolidation and development of the new Planning and Development Legislation.
In 2007, a Private Member’s Bill was proposed by Dr Janet Woollard, MLA Member for Alfred Cove, which was modeled on Victoria’s Planning and Development Act 1987. The justification for the introduction of the Bill was primarily based on Western Australia being the only state without third party appeals and failed to acknowledge that significant differences exist between the Victorian and Western Australian planning system.
At the February 2008 meeting of State Council, WALGA formed a Policy position against the introduction of Third Party Appeal Rights. The report noted that the main arguments against the proposal were:
1. The current strategic and statutory planning processes, and consideration of applications by Councils, already takes into account the views of affected parties and the community generally; 2. Third party appeals could be lodged because of vexatious or commercial interests, not because of genuine planning matters; 3. Such appeals would cause significant delays and additional costs for development, as even lodgment of an appeal would put a development on hold;
www.walga.asn.au Report 03 Page 28 4. Additional planning appeals would place a further burden on already stretched Local Government resources. Local Governments would incur additional costs for new administrative steps in processing development applications, preparing for and responding to appeals lodged with the State Administrative Appeals Tribunal (SAT) and legal representation. This is particularly the case since the establishment of the State Administrative Tribunal which has seem planning appeals become more legalistic, costly and resource intensive for Local Governments. Additionally, the existing State Administrative Tribunal (SAT) system was considered efficient at reconsidering the merits of planning applications and there are currently four ways in which a third party may participate in a planning matter being considered by SAT. These are:
Being called as a witness by the respondent; Making a submission under section 242 of the Planning and Development Act 2005; Intervening under section 37(3) of the State Administrative Tribunal Act 2004, whereby the third party acquires rights and responsibilities as a party a party under the act; and Possible participation in mediation. (SAT)
Subsequently, State Council resolved in February 2008 (326.1/2008), the following position:
That: 1. the member for Alfred Cove, Dr Janet Woollard MLA and the Minister for Planning and Development, Hon Alannah MacTiernan be advised of the inaccuracies and duplications contained in the proposed Planning and Development Amendment (Third Party Appeals) Bill 2007; and 2. as there is no justification for the proposed legislation and there are significant negative implications for Local Government, industry and the community, Local Government continues to be opposed to the introduction of third party appeal rights in Western Australia. While the above arguments for WALGA’s position remain, the decision making environment in WA has changed since the formation of the position in 2008 with changes to legislation arising from the State’s planning reform ‘Planning Makes it Happen: Phases 1 and 2’, and the introduction of Development Assessment Panels (DAPs).
2.2 Changes to the Planning Framework Historically Local Government in Western Australia has been the main authority tasked with decision-making for development applications, under delegation arrangements from the Western Australian Planning Commission (WAPC).
www.walga.asn.au Report 03 Page 29 Since 2009 a number of changes have been implemented to the planning framework, directly impacting on the decision-making powers of Local Government, including:
The establishment of the Metropolitan Redevelopment Authority (MRA); Changes to Structure Planning processes; Changes to section 76 of the Planning and Development Act 2005 to give the Minister for Planning the power to order a Local Government to prepare or adopt an amendment to a local planning scheme; The introduction of Improvement Schemes and Plans; and The introduction Development Assessment Panels (DAPs). The introduction of ‘Deemed Provisions’ for local planning schemes in the Planning and Development (Local Planning Schemes) Regulations 2015;
Given the substantial changes that have occurred within the decision-making environment in Western Australia, and the recent community concerns over the creation of the DAP system to determine development applications in place of Local Governments, it is appropriate to initiate a discussion on the possible role of Third Party Appeal Rights in the Western Australian planning system.
3.0 Current Third Party Appeal Rights in Australia Third party appeal rights vary by state, with no common ‘best practice’. Nationally, the Development Assessment Forum (DAF) a federal government advisory body, provides a Leading Practice Model, which sets out ‘tracks’ for different development assessment processes.
3.1 Development Assessment Forum (DAF) The Development Assessment Forum (DAF) was formed in 1998 to bring key stakeholders together to reach agreement on ways to streamline the processes used for development approval while preserving high quality decision making. The DAF published its Leading Practice Model for Development Assessment in March 2005, which aims to provide a blueprint for jurisdictions to create a simpler, more effective approach to development assessment. The practice model achieves this by defining ten leading practices that a development assessment system should exhibit, and applying the ten leading practices to six development assessment pathways or tracks.
With regards to Third Party Appeal Rights, DAF’s Leading Practice Model states that “opportunities for third-party appeals should not be provided where applications are wholly assessed against objective rules and tests”, and that “opportunities for third-party appeals may be provided in limited other cases”. In this way, the DAF model hopes to avoid unnecessary review where objective criteria has already been established by a consultative process. Elements of DAF’s Leading Practice Model for Development Assessment are used in some jurisdictions.
www.walga.asn.au Report 03 Page 30 3.2 Third Party Appeal Rights by State and Territory State/Territory Scope of Third Party Appeal Rights Number & effects of Third Party Appeal Rights (cost, timeframes, etc.)
New South Appeal rights limited to uses such as major Third parties have 28 days to lodge an Wales developments where the development is high impact appeal. Court cases can last several days, and possibly of state significancei. A third party or weeks for complex cases. objector can bring a merit based appeal in the Land and Environmental Court against a decision to grant development consent only if the development is designated development (development listed as such in the EP & A Regulation).
South Australia Appeal rights limited to ‘Category 3’ii developments. The number of all appeals lodge with the A third party who makes a written representation on ERD Court trends between 191-200 a proposed Category 3 development has a right to appeals per year, with 78% of appeals appeal against that decision or any conditions lodged withdrawn or resolved without going attached to it. A person who disagrees with a to a full hearing. (LGA SA 2014). decision of a relevant authority, but is a third party who has not taken the opportunity to lodge a written representation during the public comment period is not entitled to appeal.
Queensland DAF based - Appeal rights limited to ‘impact No information available. assessable’iii developments. The person making the third party appeal must have lodged a ‘properly made submission’ with the local council within the public notification period for the development application.
Tasmania Broad appeal rights, but third parties can only object For the 2013-2014 year 117 appeals in total to a planning application if it is a ‘discretionary’ were lodged under the Land Use Planning application, which must be advertised. To appeal the and Approvals Act (RMPAT 2014) third party must have lodged a representation (objection) to an application within the 14-day Cost to lodge an appeal with the Resource advertising period, and may lodge an appeal with the Management and Planning Appeal Tribunal tribunal within 14-days of receiving notice of the is $350, but if appeal proceeds to full council decision. hearing, cost for lawyers and expert witnesses may be incurred (RMPAT).
RMPAT has 90 days to complete an appeal (RMPAT 2014).
Northern Appeal rights limited to developments in residential No information available Territory zones, unless the land is adjacent to or opposite a residential zone, in limited circumstances. Third party appeal rights apply only to those persons who made submissions on a Development Application.
Australian DAF based - Appeal rights limited to available for Third party appellants must lodge appeals iv Capital those merit or impact track development no later than four weeks after the decision applications that went through the major notification was made. Territory process, unless exempt by regulation.
www.walga.asn.au Report 03 Page 31 For the 2015-2016 year 22 applications were received in total for administrative review under Planning and Development. The cost to apply for review is $325 and cases are subject to 120 day limit (ACAT 2016)
Victoria Broad appeal rights. Provision of third party appeal For the 2014/2015 year 4% (2,292) of rights cover most developments in Victoria. To development applications had a review appeal the third party must have lodged an objection lodged with VCAT. to an application within the advertising period. Anyone who may be affected can make an objection, Hurley et al (2013) found appeals from third objectors do not have to show they will be personally parties accounted for 19% of VCAT cases. affected and may object on broad public interest issues. If, for good reason, a person was unable to An objector who lodged an objection in lodge an objection, may be able to apply for a review writing must make an application for review of the decision if VCATv gives permission. (appeal) within 21 days of decision to grant a permit.
i – Examples include chemical factories, large-scale breweries, resource projects such as coal mines and quarries, and turf farms. ii - In Category 3 development applications, notice must be given to adjacent owners and occupiers as well as those considered by the relevant authority to be significantly affected by the proposed development. Also, the general public must be notified by publication of a notice in a local or state-wide newspaper. iii – Act or local planning instruments will dictate the category of a development. iv – Assessment tracks which are to be followed for the assessment of different kinds of development proposals include; ‘merit track’ for development proposals that can be assessed using rules and criteria in the code that applies to the proposals, and ‘impact track’ for development proposals that can be assessed using rules and criteria in the code that to the proposals, relevant environmental impact statements and the statement of strategic directions. v- Victoria Civil and Administrative Tribunal
3.3 Western Australia State Government Position In its 2015 report on the review of the Planning and Development (Development Assessment Panels) Regulations 2011, the Western Australia Legislative Council noted that the State’s position on Third Party Appeal Rights was set out on 3 June 2009, by the then Minister for Child Protection, representing the Minister for Planning, who advised the Legislative Council of the Government’s position on third party appeals:
The Government does not currently have any plans to introduce third party appeal rights in Western Australia.
The Government does not believe that the introduction of third party appeal rights in Western Australia is consistent with current attempts to simplify and streamline the planning approvals process. The Planning and Development Act 2005 requires public consultation in relation to the planning framework established in local and regional areas, with public consultation mandated for local and region planning scheme amendments, as well as State Planning Policies, local planning policies and structure plans. As such, the Government believes that the current planning process provides sufficient opportunity for the local community to have a say in what happens in their neighbourhoods. (p.31)
The report states that this remains the Government’s policy.
www.walga.asn.au Report 03 Page 32 3.4 Judicial Review The ability for third parties to appeal the process behind an administrative planning decision via judicial review is open in each jurisdiction in Australia, even where merit based Third Party Appeal Rights are present. Judicial reviews are heard by a Judge in a Court of Law, and are a review of the legality of the decisions under challenge, not a review of the merits of a development. This process has a much narrower focus than a planning review, in that the question that the Court is concerned with is about the process and manner in which the decision was made, as opposed to was the decision the correct or best outcome.
To date, the recourse for an affected party in Western Australia has been to pursue the matter through the Supreme Court as a matter of Judicial Review. Over the past two years, there appears to have been an increase in the number of individuals and Councils applying for Judicial Review, most notably Nairn v Metro-Central JDAP where the approval of a mixed use tower was disallowed. The continual perusal of such Judicial Reviews may not be in the long term best interest of communities, as they are prohibitively expensive and is focused on the decision making process, rather than the outcome.
4.0 Arguments For and Against Third Party Appeal Rights A literature review was conducted to establish the most common arguments both for and against third party appeals as well as examine the issues and benefits that may arise from their use. Victoria has the broadest third party appeal rights, and therefore much of the current literature examining third party appeals is focused on that state’s experience.
4.1 Arguments Against Third Party Appeals Legitimate interest and third party appeals – Many authors note that the traditional view of appeal rights holds that the only parties with a direct interest in a development application are the applicant and the responsible authority; meaning property owners are the only ones who should have the right to appeal over their land and that they should be able to use their property with minimal external interference. Therefore, Third Party Appeal Rights, if not clearly defined, may allow individuals to take part in planning decisions in which they have no direct interest. This can lead to opposition on non planning grounds, rather than because of an issue with the merit or substance of the proposal (Ellis2006) (Willey 2006) (Hurley et al 2011).
Loss of representation – This arguments states that the appeals process shifts decision making for development applications away from Local Government and therefore away from the locally elected representation. This shift may reduce accountability and transparency in the planning decisions process for the local community. A large amount of decision making power has been removed from Local Government with the introduction of DAPs. It is argued that Third Party Appeal Rights further weaken the representative nature of Local Government decision making (Ellis 2006) (Willey 2006) (Hurley et al 2011).
www.walga.asn.au Report 03 Page 33 Current planning processes provide opportunities to participate – A strong argument against Third Party Appeal Rights is that proactive public engagement, participation and collaboration in policy formation and strategic planning is preferable as these processes focus on higher order engagement which leads to better policy and greater certainty in the process and outcome. Third party appeals tend to encourage adversarial rather than collaborative debate on planning issues. The effect of Third Party Appeal Rights may be to promote short-term decision making and could create planning outcomes that are not in the longer term interest of the community (Ellis 2006) (Willey 2006) (Hurley et al 2011 )(Cook et al 2012) (Hurley et al 2013).
Not representative of the broader community- The idea of equity of access to planning decisions is often cited in the literature as a justification for third party appeal rights, however some research reviewed found that the majority of people lodging third party appeals come from a well-organised, well-connected and well-resourced segment of the community, which raises the question of how representative these objections are of the wider community’s views (Ellis 2006) (Willey 2006) (Cook et al 2012) (Hurley et al 2013). For example, in their review of Third Party Appeals against multi-unit developments in Victoria, Hurley et al (2013) found that the number of objections against applications increase in more socio- economically advantaged areas, which indicates that developments in these areas are facing more organised community resistance, either by greater propensity for individuals to object, or by effective resident mobilisation (Hurley et al (2013) p.4).
Impact on the decision making process – Researchers argue that the introduction of Third Party Appeal Rights will lead to increased cost and delays, and the possibility of appeals being lodged because of vexatious or commercial interests, not because of genuine planning matters. As a result, the planning approval processes will experience delays which will create inefficiency, uncertainty, increased costs, and could ultimately act as a brake on investment and economic growth (Ellis2006) (Willey 2006) (Hurley et al 2011).
Failure to determine/Deemed Refusal – While researching multi-unit development in Victoria, Cook et al (2012) found that as the volume of objections to a development application increases, so too does the likelihood of appeal to VCAT. Additionally, failure to determine (where council fails to render a decision within the prescribed timeframes, equivalent to deemed refusal in Western Australia) cases are strongly related to high objection numbers. Therefore, applications which receive the highest number of objections are also the applications which are most likely to be appealed, and are also most likely to be the applications which Council fails to determine. While failures to determine may be instances where the local authority is unable to process applications due to resource constraints, the results and anecdotal evidence suggest that often these cases involve the authority declining to make a decision where there is significant resident opposition (Cook et al (2012) p.39). Turning planning into a ‘numbers game’ – Some researchers noted the existence of third party appeals may lead members of the community to believe that the number of objections in and of itself is a way of engaging in the planning process and prevent developments they do not support (Planning Institute of Australia (NSW Division) 2012) (Hurley et al 2013). However, in order to be considered by the responsible authority, an objection needs to be about a valid planning concern. As a result the community’s expectations about how it can influence the planning system may not be met.
www.walga.asn.au Report 03 Page 34 4.2 Arguments For Third Party Appeals Legitimate interest – A strong argument is made that neighbouring landowners, occupiers and members of the community often have a very legitimate interest in whether development occurs and the form of that development, as any new development has impacts on existing neighbourhood character, amenity, infrastructure and property values. Equity in the development process is also important, if an applicant has rights of appeal, the argument is that a third party should also have right of appeal to maintain equity. Without Third Party Appeal Rights the wider community is removed as a stakeholder (Ellis 2006) (Willey 2006) (Trenorden 2009). Improved participation and decision making – It is often noted that planning is a communicative process which needs to embrace the public in meaningful ways. Third party appeals would have the potential to increase avenues for public engagement with planning, and may deliver better planning decisions as an empowered public, with increased opportunities for participation, can result in improved planning outcomes. Therefore, Third Party Appeal Rights affords the combination of a broader base of input, increased debate and the ability for ‘local knowledge’ to inform planning approvals which can lead to improved outcomes (Morris 2005) (Ellis 2006) (Willey 2006). As an example, Willey (2006) notes that it is comparatively rare in Victoria for an objector to completely succeed in overturning a decision, but often their involvement is considered to lead to a better planning decision.
Improved consultation – Third party appeal rights may encourage developers to deal with the local community in a more engaging manner and places pressure to concede or improve design elements where appropriate and reasonable to do so (Willey 2006).
Improved transparency – Applicant appeals are a means by which decision-making can be checked and provide property owners a recourse to an independent review body as a safeguard against inconsistent decisions. An argument for Third Party Appeal Rights is that they provide the same opportunity for third parties to scrutinise and challenge decision- making, thus keeping decision-makers accountable. Additionally, Third Party Appeal Rights are purported to discourage corrupt behaviour between developers and local government (Morris 2005) (Willey 2006) (Trenorden 2009).
4.3 Competing Viewpoints There are strong arguments both for and against third party appeals. The research notes that which side of the argument one lands on often has a great deal to do with the planning culture in which they are operating (Willey 2006) (Trenorden 2009). In Victoria, where third party appeals have become an embedded practice, most stakeholders are supportive of the practice, even while acknowledging negative aspects may be associated with them. In contrast in places such as Western Australia where third party appeal rights are not a part of the planning culture, views tend to focus predominately on the negative aspects of Third Party Appeal Rights. For example, a concern often expressed is that allowing third party appeals would lead to a ‘flood’ of appeals, however evidence from Victoria shows that Third Party Appeals account for only 19% of VCAT cases (Hurley et al 2013). So while allowing Third Party Appeals would lead to an increase in appeals, the effect may be overemphasized.
www.walga.asn.au Report 03 Page 35 In a 2009 paper, Judge Christine Trenorden, Senior Judge of the Environment, Resources & Development Court in South Australia, argued that the issue of whether Third Party Appeal Rights are necessary may be resolved by the answers to the following questions:
1. Does the community have confidence that the policy document for a particular area sufficiently describes the desired future character, and contains a comprehensive set of objectives and principles for development in the area, relevant to the local context including the environment?
2. Does the community have confidence in the decision-makers to make a decision in the best interests of the community now and in the future?
3. Is there a transparency about the decision-making?
4. Is there a guarantee that the decision-makers will assess the development in the context of the desired future character, objectives and principles of development for the area (assuming the adequacy of these policy statements)? (Trenorden, 2009 p. 13)
The questions put forward by Judge Trenorden speak not to the capability of the decision maker to determine an application, but the “community’s confidence” in their ability. These are not necessarily the same thing. When the decision-maker is appointed by an external body, the community’s confidence in them to make a decision in the best interests of the community now and in the future is diminished. Any lack of transparency around the decision-making process further erodes confidence.
5.0 Issues to Consider
5.1 Criteria for Third Party Appeal Rights in other States After considering the arguments for and against Third Party Appeal Rights, as well as Judge Trenorden’s questions on determining the necessity of such rights, there may be further debate on what limitations, if any, should be placed on Third Party Appeal Rights were they to be introduced. For instance, it may be that Third Party Appeals be limited to only certain types of applications involving the use of discretionary powers, or instances where the decision-maker has advertised the development. If this were to be the case, then Third Party Appeal Rights would apply to determinations made by both Local Government and DAPs.
Based on the summary of Third Party Appeals processes that exist in other jurisdictions, the primary criteria for allowing Third Party Appeal Rights include:
Excluding vexatious or commercial interests appeals, and any appeals made on none-genuine planning matters, Excluding appeals by those parties who did not previously make a submission. Excluding appeals where an application meets ‘deem-to-comply’ requirements, and no discretion has been excised. Excluding appeals for some cases of minor development. Having a short window in which to appeal (example 14 days).
www.walga.asn.au Report 03 Page 36 5.2 Implications for Local Government Whilst the introduction of third party appeal rights would give the community the ability to appeal decisions made by DAPs, it would also result in the majority of appeals being lodged against decisions made by Local Government. Staff would be impacted as officers would require additional time to prepare for and attend third party appeals, which would likely have an effect on the ability of Local Government officers to complete development application assessment within the required statutory timeframes.
Additional resources would likely be required to administer, resource and potentially engage legal counsel to defend these decisions and this would most likely create an additional financial burden for Local Government. Without proper resources, such a situation could lead to delays in making planning decisions, which in turn, would create inefficiency, uncertainty, increased costs, and could ultimately act as a brake on investment and economic growth.
While limitations could be placed on the type and scope of Third Party Appeal Rights, it is likely that any system which allows Third Party Appeals would result in increased workload and cost for Local Government.
6.0 Conclusion – What is right for Western Australia? Since WALGA formulated its policy position on Third Party Appeal Rights in 2008, there have been significant changes to the planning system, including the introduction of DAPs as the decision-making body for a range of development applications. By removing the decision-making abilities of democratically elected Local Government representatives and placing it in the hands of appointed panel members, the general public’s confidence that planning decisions are being made that are in the best interests of the community has been substantially reduced. This loss of confidence coincides with increased anxiety amongst the community over the changing amenity of suburbs due to increasing density and population pressures.
Third Party Appeal Rights are a complex issue, with strong arguments both for and against their implementation. Property rights must be balanced against the community’s rights of participation, and the desire for transparency and accountability in government and decision- making bodies. Local Government must also consider the likely impacts in terms of cost, resourcing and the timely delivery of services.
6.1 Feedback Sought In order to help WALGA review its position, feedback from the Local Government planning community and Elected members is sought. In light of the information presented, and considering the possible implications for Local Government if some form of Third Party Appeal Rights were to be adopted, WALGA welcomes any feedback or comments on the topic including:
Would you be in favour of the introduction of some form of Third Party Appeal Rights in Western Australia? Why or Why not? Do you feel your Council is likely to support some form of Third Party Appeal Rights? Any other comments relating to Third Party Appeal Rights.
www.walga.asn.au Report 03 Page 37 7.0 References Australian Capital Territory Civil and Administrative Tribunal (ACAT), (2016), 2015-2016 Annual Review, Canberra, Australia, http://www.acat.act.gov.au/__data/assets/pdf_file/0003/1018092/ACAT-2015-16-Annual- Review.pdf
Cook, N. Taylor, E. Hurley, J. and Colic-Peisker, V. (2012b), 'Resident third party objections and appeals against planning applications: implications for higher density and social housing - AHURI Final Report No. 197', in AHURI Final Report Series, Australian Housing and Urban Research Institute, Melbourne, Australia, vol. 197, pp. 1-98, ISSN: 1834-7223.
Ellis, Geraint (2006). ‘Third party appeals: Pragmatism and principle.’ Planning Theory and Practice 7.3: pp. 330-339.
Hurley, J. Taylor, E. Cook, N. and Colic-Peisker, V. (2011), ‘In the fast lane: Bypassing third party objections and appeals in third party planning process’, in State of Australian Cities National Conference 2011, Australian Sustainable Cities and Regions Network (ASCRN), Melbourne, Australia, pp. 1-10.
Hurley, J, Cook, N and Taylor, E (2013), 'Examining three planning pathways in the mediation of resident opposition to compact city', in Nicole Gurran and Bill Randolph (ed.) Proceedings of the State of Australian Cities National Conference 2013, Sydney, Australia, 26 - 29 November 2013, pp. 1-12.
Local Government Association of South Australia, (2014), ‘Planning and Appeals Review – Planning Reform Issues Paper’,
Morris, S. (2005), ‘Third Party Participation in the Planning Permit Process, Victorian Civil and Administrative Tribunal’, Melbourne, Australia http://www.austlii.edu.au/au/journals/VicJSchol/2005/5.pdf.
Parliament of Western Australia, (2015), ‘Uniform Legislation and Statues Review Committee – Public Hearings on Submissions, Question on D MCLeod Submission’, Perth, Australia, pp. 1-11
Planning Institute of Australia (NSW Division), (2012),’A New Planning Act for New South Wales – Submission’, North Sydney, Australia
Resource Management and Planning Appeal Tribunal of Queensland, (2014), Annual Report 2013-2014, Brisbane, Australia, http://www.rmpat.tas.gov.au/__data/assets/pdf_file/0011/298640/Annual_Report_for_2014_. pdf
State Administrative Tribunal, ‘Info Sheet 6 – Third party participation in planning matters’, Perth, Australia http://www.sat.justice.wa.gov.au/_files/Info%20Sheet%206%20- %20Third%20party%20participation%20in%20planning%20matters.pdf
www.walga.asn.au Report 03 Page 38 Trenorden, C. (2009), ‘Third-Party Appeal Rights: Past and Future’, Town Planning Law Conference 2009, Perth, Australia http://www.sat.justice.wa.gov.au/_files/10_Hon_Judge_Christine_Trenorden_Presentation.p df
Victoria State Government, Planning Permit Activity Annual Report: 2014-15, Department of Environment, Land, Water and Planning, Melbourne, viewed 30 March 2017, https://www.planning.vic.gov.au/publications/planning-permit-activity-in-victoria/planning- permit-activity-annual-report-2014-15
Western Australia Local Government Association (WALGA), (2016), ‘Development Assessment Panels – 2011-2016 Review’, West Leederville, Australia, http://api.ning.com/files/RBh5pTSdbmvNZvRPEdzQPcKFeEqAMAPBF0tfEEYoPiDy8IHu5F RuuTsz1*46DwUfWSC-m6uCViT4NuqVgkE6dfxZNVMNS1LW/DAPs201116Review.pdf
Western Australia Legislative Council, (2015), ‘Report 93 – Standing Committee on Uniform Legislation and Statues Review, Review of the Planning and Development (Development Assessment Panels) Regulations 2011, Perth, Australia
Willey, S. (2006), ‘Planning Appeals: Are Third Party Rights Legitimate? The Case Study of Victoria, Australia’, Urban Policy and Research, 24(3), pp. 369–389.
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