Please note:  These minutes are yet to be confirmed as a true record of proceedings

CITY OF BUSSELTON

MINUTES FOR THE Policy and Legislation Committee MEETING

HELD ON 26 February 2020

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening and Announcement of Visitors. 2

2....... Attendance. 2

3....... Public Question Time. 2

4....... Disclosure Of Interests. 2

5....... Confirmation and Receipt Of Minutes. 3

5.1          Minutes of the Policy and Legislation Committee Meeting held 29 January 2020. 3

6....... Reports. 4

6.1          RESCISSION OF COUNCIL POLICY: 133 DRAINAGE IN RECREATION RESERVES. 4

6.2          RESCISSION OF COUNCIL POLICY: NATURE VERGES FOR URBAN AREAS. 8

6.3          REVIEW OF COUCIL POLICY:019 SPONSORSHIP. 12

6.4          PROPOSED BUSHFIRE LOCAL PLANNING POLICY (AND RELATED REVIEW OF HOLIDAY HOMES LOCAL PLANNING POLICY) - CONSIDERATION FOR FINAL ADOPTION AFTER CONSULTATION / ADOPTION OF DRAFT REVISED BUSHFIRE NOTICE FOR CONSULTATION.. 19

7....... General Discussion Items. 107

8....... Next Meeting Date. 107

9....... Closure. 107

 


Policy and Legislation Committee                                  3                                                                26 February 2020

MINUTES

 

MINUTES OF Policy and Legislation Committee HELD IN Committee Room, Administration Building, Southern Drive, Busselton, ON 26 February 2020 AT 10.00am.

 

1.               Declaration of Opening and Announcement of Visitors

The Presiding Member opened the meeting at 10.01am.

 

2.               Attendance 

Presiding Member:

 

Members:

 

Cr Ross Paine

Cr Grant Henley

Cr Kate Cox

Cr Lyndon Miles

Cr Paul Carter (deputy)

 

Officers:

 

Mr Paul Needham, Director, Planning and Development Services

Ms Sarah Pierson, Manager, Governance and Corporate Services

Mr Daniell Abrahamse, Manager, Engineering and Technical Services

Ms Lee Reddell, Manager, Development Services

Mr Ian McDowell, Ranger & Emergency Services Coordinator

Mr Ronald Wildschut, Development Control Coordinator

Mrs Emma Heys, Governance Coordinator

Ms Naomi Davey, Community Development Officer

Ms Melissa Egan, Governance Officer

 

Apologies:

 

Cr Kelly Hick

 

3.               Public Question Time  

Nil

 

4.               Disclosure Of Interests

Nil

 

               

5.               Confirmation and Receipt Of Minutes

5.1             Minutes of the Policy and Legislation Committee Meeting held 29 January 2020

COMMITTEE DECISION

PL2002/293            Moved Councillor G Henley, seconded Councillor L Miles

That the Minutes of the Policy and Legislation Committee Meeting held 29 January 2020 be confirmed as a true and correct record.

CARRIED 5/0

  


Policy and Legislation Committee                                  5                                                                26 February 2020

6.               Reports

6.1             RESCISSION OF COUNCIL POLICY: 133 DRAINAGE IN RECREATION RESERVES

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Council Policies

BUSINESS UNIT

Engineering and Facilities Services

REPORTING OFFICER

Manager, Engineering and Technical Services - Daniell Abrahamse

AUTHORISING OFFICER

Director, Engineering and Works Services - Oliver Darby

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Council Policy 133 Drainage in Recreation Reserves  

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

PL2002/294            Moved Councillor G Henley, seconded Councillor K Cox

That the Council rescinds Council Policy 133 ‘Drainage in Recreation Reserves’ (Attachment A) effective immediately.

CARRIED 5/0

 

EXECUTIVE SUMMARY

This report recommends the rescission of Council policy 133 ‘Drainage in Recreation Reserves’ (the Policy) (Attachment A), with the Policy having been reviewed as part of the City’s overall review of its Council policies, and having been found to be redundant. 

 

BACKGROUND

The Policy applies to drainage in recreation reserves (as opposed to planned public open space) and was initially developed circa 1996, during a period of time when stormwater drainage guidelines were being developed by agencies such as the (then) Department of Planning and Infrastructure and Department of Water.

The Policy was last reviewed in 2016 and outlines the circumstances under which the City may agree to the use of a recreation reserve for drainage purposes. 

The City has developed and implemented a policy framework, which sets out the intent of Council policies, as opposed to operational documents such as Operational Practices. The Policy has been reviewed by officers in this context, and its content is considered to be a duplication of legislation and guidelines provided by the Western Australian Planning Commission (WAPC). 

 

OFFICER COMMENT

The City generally manages drainage matters and the use of recreation reserves through its planning and development processes. In doing so the City is guided by the State Planning Policy 2.9 ‘Water Resources’ and the WAPC’s ‘Better Urban Water Management’ (2008) guidelines, which seek to ensure drainage management is addressed through land use planning and that land is set aside for future drainage purposes.  These guidelines are extensively used by Western Australian local governments for the approval and management of drainage in recreation reserves. 

 

Additionally, provisions in the Local Government Act 1995 (the Act) require the City to obtain approval from the Minister of Lands prior to allowing a reserve to be used for any purpose other than that for which the land is purposed, including drainage.  In applying these provisions to requests for drainage in recreation reserves, the City consults with the Department of Planning, Lands and Heritage (the Department).

Statutory Environment

In accordance with section 2.7(2) (b) of the Act, it is the role of the Council to determine the local government’s policies. The Council does this on recommendation of a Committee it has established in accordance with section 5.8 of the Act.

When a requirement to drain onto local government property arises, the City refers to and is guided by Part 3 Subdivision 6, 3.54 of the Act – Reserves under Control of Local Government - and consultation with the Minister for Lands at the Department.

In undertaking its role to comment on and assess the compliance with conditions applied to applications for structure plan or subdivision approval, the City’s role is advisory only. Decision-making power and responsibility rests with the WAPC.

Relevant Plans and Policies

The WAPC policy framework covers the field with respect to this issue, in particular the ‘Liveable Neighbourhood’s Operational Guidelines’ and ‘Development Control (DC) Policy DC2.3: Public Open Spaces in Residential Areas’. Within those documents, there is extensive guidance related to the design and placement of drainage infrastructure in public open space and recreation reserves.

 

State Planning Policy 2.9 ‘Water Resources’ provides additional guidance for the consideration of water resources in land use planning.

 

‘Private Works on City Land’ is applicable in that the City uses it to set out guidance relating to private works on City land, where existing laws or other policies do not already provide sufficient guidance, such that City land is appropriately managed.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place. No risks of a medium or greater leave have been identified.

Options

As an alternative to the proposed recommendation, the Council could choose to:

1.    Retain the Policy in its current form; or

2.    Retain and make amendments to the Policy.


 

CONCLUSION

The Policy has been reviewed and it is recommended that it be rescinded, as drainage management planning is addressed through the structure planning stages of development and through provisions within the Act as well as through use of the Western Australia Planning Commission’s ‘Better Urban Water Management’ (2008) guidelines.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Policy will be rescinded immediately upon Council’s endorsement.

 


Policy and Legislation Committee

7

26 February 2020

6.1

Attachment a

Council Policy 133 Drainage in Recreation Reserves

 

 

 

10.02AM:                   At this time, Mr Wildschut and Mr Abrahamse left the meeting.

                                  


Policy and Legislation Committee                                  9                                                                26 February 2020

6.2             RESCISSION OF COUNCIL POLICY: NATURE VERGES FOR URBAN AREAS

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Council Policies

BUSINESS UNIT

Governance Services

REPORTING OFFICER

Governance Coordinator - Emma Heys

AUTHORISING OFFICER

Director, Engineering and Works Services - Oliver Darby

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Council Policy: Nature Verges for Urban Areas  

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

PL2002/295            Moved Councillor G Henley, seconded Councillor P Carter

That the Council rescinds Council Policy: Nature Verges for Urban Areas (Attachment A) effective immediately.

CARRIED 5/0

 

EXECUTIVE SUMMARY

This report recommends the rescission of Council policy ‘Nature Verges for Urban Areas’ (the Policy) (Attachment A), with the Policy having been reviewed as part of the City’s overall review of its Council policies and recommended for rescission for the reasons outlined in this report.

 

BACKGROUND

The Activities in Thoroughfares and Public Places and Trading Local Law 2015 (the Local Law) sets out the statutory provisions for the planting of verge treatments (see ‘Statutory Environment’).  The Policy, which was last reviewed in 2017 (and subsequently transferred into the new template as part of an initial transfer of recently reviewed policies), provides guidance for the planting of trees and shrubs within nature verges by residents, with the aim of minimising the use of water, reducing nutrient runoff into waterways, increasing wildlife habitat and complementing the natural heritage of the City.

OFFICER COMMENT

The Policy sets out the opportunity for residents to practice, within public land, water efficiency principles and biodiversity values that align with the State Water Strategy by encouraging the installation of local plant species. The Policy also supports the promotion of Western Ringtail Possum habitat, supplementing the City’s investment in its native street tree planting program, and generally improving street amenity.  

 

These objectives can be achieved however through the application of the Local Law and associated permitting processes, with additional policy direction considered unnecessary. Additionally, following a review of the Policy, it has been determined by officers that its content provides supporting information more aligned to an Operational Practice, as opposed to strategic policy direction.

Statutory Environment

Pursuant to section 2.7(2)(b) of the Local Government Act 1995, a role of Council is to determine the local government’s policies.

 

With respect to nature verges in urban areas, Division 3 of the Local Law allows for an owner or occupier of land zoned Residential or Industrial which abuts a verge to install a permissible verge treatment on the part of the verge directly in front of her or his land (subject to other provisions of the Local Law).

 

Clause 2.8 sets out that a person shall not install or maintain a verge treatment which is not a permissible verge treatment, except under the authority of a permit. Clause 2.7 sets out what is a permissible verge treatment is, namely the planting and maintenance of a lawn or the planting and maintenance of a garden, subject to certain conditions.

Relevant Plans and Policies

The City has developed and implemented a policy framework, which sets out the intent of Council policies, as opposed to operational documents such as Operational Practices. The Policy has been reviewed by officers in this context, with its content considered to more operational in nature, rather than a strategic statement of Council.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place. No risks of a medium or greater level have been identified.

Options

As an alternative to the proposed recommendation the Council could:

1.    Retain Council Policy Nature Verges for Urban Areas; and

2.    Request officers present a revised policy for Council’s consideration at a later point in time.

CONCLUSION

Following a review of the Policy, it has been determined by officers that the Policy is not of a strategic nature and deals with matters able to be administered under the Local Law, with operational guidance provided as required through an Operational Practice. This report recommends that the Policy be rescinded.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Policy will be immediately rescinded upon Council’s endorsement.

 


Policy and Legislation Committee

11

26 February 2020

6.2

Attachment a

Council Policy: Nature Verges for Urban Areas

 


 

 

 

 

10.14am:          At this time, Ms Davey entered the meeting.


Policy and Legislation Committee                                  13                                                             26 February 2020

6.3             REVIEW OF COUCIL POLICY:019 SPONSORSHIP

STRATEGIC GOAL

STRATEGIC OBJECTIVE

6. LEADERSHIP Visionary, collaborative, accountable

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Council Policy

BUSINESS UNIT

Community Services

REPORTING OFFICER

Community Development Officer - Naomi Davey

AUTHORISING OFFICER

Director, Community and Commercial Services - Naomi Searle

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Current Council Policy: 019 Sponsorship

Attachment b    Proposed Council Policy: Sponsorship Arrangements  

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

PL2002/296            Moved Councillor L Miles, seconded Councillor P Carter

That the Council adopts the revised Council policy ‘Sponsorship Arrangements’ as per Attachment B, to replace the current policy (Attachment A).

CARRIED 5/0

EXECUTIVE SUMMARY

This report presents a revised Sponsorship Arrangements policy (Attachment B) (the Policy) for Council consideration, with the current policy having been amended as part of the City’s overall review of its Council policies, and its focus revised to address sponsorship arrangements provided by the City to community organisations and individuals that are compatible with, and complementary to the City’s vision and objectives.

 

BACKGROUND

Council policy 019 Sponsorship was initially adopted in October 2015 to ensure accessible, open and transparent processes were applied to sponsorship proposals received by the City and provides definitions, guidelines and procedures through which the City can provide sponsorship. The policy applies to sponsorship arrangements when receiving financial benefit and/or in-kind support from a commercial or external organisation, in exchange for public recognition or association, but does not include the provisions of the City’s financial assistance programs to community groups and organisations.

 

The City has developed and implemented a policy framework, which sets out the intent of Council policies, as opposed to operational documents such as Operational Practices and Guidelines. The policy has been reviewed by officers in this context and has been revised to ensure its ongoing relevance to the City’s strategic objectives.

 

OFFICER COMMENT

Working with key stakeholders in the community to provide a range of community services and programs that support people of all ages and backgrounds is a key strategic objective of the City of Busselton.

 

 

The Policy now deals only with the City’s provision of sponsorship arrangements under the programs of Event Sponsorship, Community Bids and Donations, Contributions and Subsidies. Sponsorship received by the City from a commercial or external organisations in return for public recognition rarely occurs and when it does, this is captured through various grant programs and generally managed through specific projects with individual acquittal programs.

 

Detail considered more operational in nature and already provided for in the existing guidelines and operational practices have also been removed from the Policy, ensuring it is strategic in nature and aligned to the City’s policy framework. The Guidelines outlining the requirements for applying for Sponsorship Arrangements are available to both staff and members of the public.

Statutory Environment

In accordance with section 2.7(2(b) of the Local Government Act 1995 (the Act) it is the role of the Council to determine the local government policies. The Council does this on recommendation of a Committee it has established in accordance with section 5.8 of the Act.

 

Relevant Plans and Policies

The City has a policy framework which was developed and endorsed by Council in response to the recommendations of the 2017 Governance Service. The framework sets out the intent of Council policies, as opposed to operational documents such as Operational Practices.

 

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place. No risks of a medium or greater level have been identified.

Options

As an alternative to the proposed recommendation the Council could:

1.    require further amendments to the Policy; or

2.    choose to rescind the Policy, noting all relevant Operational Practices and Guidelines would remain in place.

 

CONCLUSION

In accordance with the City’s Policy Framework, Council Policy 019 Sponsorship has been reviewed and revised to focus on sponsorship arrangements between the City and community organisations and individuals via various financial assistance programs.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Policy will be placed on the City’s website within one week of Council adoption.

 


Policy and Legislation Committee

15

26 February 2020

6.3

Attachment a

Current Council Policy: 019 Sponsorship

 


 


 


Policy and Legislation Committee

17

26 February 2020

6.3

Attachment b

Proposed Council Policy: Sponsorship Arrangements

 


 

 

10.17am:          At this time, Ms Davey and Mrs Heys left the meeting.

10.17am:          At this time, Ms Reddell and Mr McDowell entered the meeting.

 


Policy and Legislation Committee                                  19                                                             26 February 2020

6.4             PROPOSED BUSHFIRE LOCAL PLANNING POLICY (AND RELATED REVIEW OF HOLIDAY HOMES LOCAL PLANNING POLICY) - CONSIDERATION FOR FINAL ADOPTION AFTER CONSULTATION / ADOPTION OF DRAFT REVISED BUSHFIRE NOTICE FOR CONSULTATION

STRATEGIC GOAL

3. ENVIRONMENT Valued, conserved and enjoyed

STRATEGIC OBJECTIVE

3.1 Development is managed sustainably and our environment valued.

SUBJECT INDEX

Development Control Policy

BUSINESS UNIT

Planning and Development Services

REPORTING OFFICER

Director, Planning and Development Services - Paul Needham

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Draft Bushfire Policy

Attachment b    Revised Bushfire Policy

Attachment c    Existing Holiday Homes Policy

Attachment d   Proposed Holiday Home Policy

Attachment e    Residential Built-Out Areas Map Showing Infrastructure and Zoning

Attachment f    Consultation Summary

Attachment g   Final Position Statement

Attachment h   Existing Notice

Attachment i     Proposed Notice

Attachment j     Bushfire Notice (Map)

Attachment k    Analysis of Provisions in Existing Notice

Attachment l    Revised Bushfire Policy With Committee Amendments

Attachment m  Proposed Holiday Homes Policy With Committee Amendments  

OFFICER RECOMMENDATION

That the Council –

1.         Pursuant to Clauses 4 and 5 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015

(a)       Adopts the Bushfire Local Planning Policy, as set out at Attachment B; and

(b)       Amends the Holiday Homes Local Planning Policy, as set out at Attachment D;

2.         Adopts the Bushfire Notice set out at Attachments I and J as a draft for consultation; and

3.         Advises the Department of Planning, Lands & Heritage, and Department of Fire & Emergency Services of the above.

 

COMMITTEE RECOMMENDATION

PL2002/297            Moved Councillor P Carter, seconded Councillor G Henley

That the Council –

1.         Pursuant to Clauses 4 and 5 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015

(a)       Adopts the Bushfire Local Planning Policy, inclusive of the Committee amendments as per Attachment L; and

(b)       Amends the Holiday Homes Local Planning Policy, inclusive of the Committee amendments as per Attachment M;

2.         Adopts the Bushfire Notice set out at Attachments I and J as a draft for consultation; and

3.         Advises the Department of Planning, Lands & Heritage, and Department of Fire & Emergency Services of the above.

CARRIED 5/0

 

Reasons:       The Committee and officers identified some erroneous references to previous ‘Deemed to Comply’ provisions within clause 4.4 of the Bushfire Local Planning Policy and 4.5 of the Holiday Homes Local Planning Policy.

 

EXECUTIVE SUMMARY

The Council is asked to consider final adoption of a proposed Bushfire Local Planning Policy, subject to a range of changes aimed at addressing issues raised during consultation. The Council is also asked to consider final adoption of related changes to the City’s existing Holiday Homes Local Planning Policy.

 

In addition, the Council is asked to consider adoption, for consultation purposes, of a draft Bushfire Notice, intended to replace the existing notice and which has been developed in parallel with the proposed Bushfire Local Planning Policy.

 

BACKGROUND

Local Planning Policy and State Bushfire Planning Framework

At its ordinary meeting of 27 March 2019, the Council adopted a Draft Bushfire Local Planning Policy (‘Draft Bushfire Policy’ at Attachment A). The Council also adopted proposed changes to the existing Holiday Homes Local Planning Policy (‘Existing Holiday Homes Policy’ - at Attachment C, ‘Proposed Holiday Homes Policy’ at Attachment D). The changes to the Holiday Homes Policy were necessary to avoid conflict or duplication between the two policies, if and when the Draft Bushfire Policy is adopted in final form. The main purpose of the proposals was to clarify the requirements related to the development of (or change of use to) a holiday home, or other development, in a bushfire prone area, and to apply the same principles to other development as already apply to assessment of holiday home applications.

 

It is now recommended that the Council adopt the proposals for final approval, incorporating a range of changes addressing the feedback received through the consultation process, and reflected in a ‘Revised Bushfire Policy’ (Attachment B). The key changes proposed are outlined and discussed in ‘Officer Comment’ below.

 

In addition, the Council indicated support for the making of a submission to the WAPC regarding the Draft Position Statement: Tourism land uses within bushfire prone areas (‘Draft Position Statement’). In the agenda report, officers also indicated that, given the relationship between the proposals and the Draft Position Statement, it may be prudent to await a ‘Final Position Statement’ before adopting the proposals in final form. The Final Position Statement (Attachment G) has now been released.

 

Bushfire Notice

In parallel with development of the Bushfire Policy, the City has also undertaken work to review its ‘Bushfire Notice’ (sometimes referred to as the ‘firebreak notice’). A copy of the ‘Existing Notice’ is provided as Attachment H and the ‘Proposed Notice’ is provided as Attachment I (and the associated map at Attachment J). The key aims of the review have been to rationalise and clarify the requirements of the notice, as well as seeking to better align the notice with town planning and building control regulation.

 

Prior to Council formally adopting the Proposed Notice, it is recommended that consultation occur, including with the City’s Bushfire Advisory Committee (BFAC), the Department of Fire & Emergency Services (DFES) and with bushfire consultants working in the District. It is also envisaged that there would be some targeted consultation with landowners where there may be more substantive change as a result of the Proposed Notice. The aim is for the new notice to be finalised and in place leading into the 2020/21 summer.

 

Whereas the Existing Notice is drafted to serve both formal/legal and community/landowner education purposes, the Proposed Notice has been drafted for formal/legal purposes only. The intention is that the Proposed Notice, once finalised, will be supplemented by more user-friendly guidance for the community (which it is envisaged will be developed only once the formal notice has been finalised).

OFFICER COMMENT

Local Planning Policy

No changes to the Proposed Holiday Homes Policy (Attachment D) are recommended. A range of changes to the Draft Bushfire Policy (Attachment A) are recommended, as set out in the Revised Bushfire Policy (Attachment B). The key changes relate to:

·        Re-drafting to remove ‘deemed-to-comply’ and ‘performance criteria’ approach/structure

·        Residential Built-Out Areas;

·        Asset Protection Zones; and

·        Partial building upgrades.

 

‘Deemed-to-comply’ and ‘performance criteria’ approach/structure

Many contemporary development control regulations or policies provide a ‘two-track’ approach to assessment. One track involves ‘deemed’ provisions, which are usually of a quantitative and objective (in their application) nature, and if they are met, the proposed development is deemed to be appropriate. If the deemed provisions are not met, however, it does not necessarily mean that the development is not appropriate. Rather, assessment against the ‘performance’ provisions is required. Performance provisions are often, but not always, of a less or non-quantitative nature; they are more subjective, requiring the exercise of professional judgement, and often being statements of the aims or objectives that need to achieved. This kind of approach is applied in the Residential Design Codes of Western Australia (‘R-Codes’), Building Code of Australia (BCA) and the WAPC’s Guidelines for Planning in Bushfire Prone Areas (‘Guidelines’).

 

In recent times, in developing and reviewing local planning policies, the City has attempted to apply this same approach. The rationale being that it is an increasingly well-used and established approach in development control regulation and policy, and it can also send a fairly clear message to applicants and the community about what kinds of proposals will definitely be supported, and ones where greater discretion and judgement will be required (but which may still be supported). The approach has been applied fairly successfully in the Holiday Homes Policy. Given that, there was an attempt to apply the same approach in the development of the Bushfire Policy.

 

Having been through the consultation process, however, it is considered that the approach did not work entirely successfully with the Draft Bushfire Policy, and cannot be made to work satisfactorily. There are considered to be two key reasons for that. Firstly, the interaction with State policy is too complex. Secondly, the ‘performance’ provisions are, in part, alternative quantitative standards. Given that, the Proposed Bushfire Policy moves away from the deemed/performance structure, setting out what were the deemed provisions as the policy statement, with what were the performance provisions as notes (in both cases suitably modified, as described below).

Residential Built-Out Areas

Clause 6.7 of State Planning Policy 3.7: Planning in Bushfire Prone Areas (SPP3.7) sets out that (emphasis added) –

Strategic planning proposals, subdivision or development applications which 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 and/or BAL-40 or BAL-FZ will not be supported unless:

(a)       the proposal is considered to be minor development to which policy measure 6.7.1 applies; or

(b)       the proposal is considered to be unavoidable development to which policy measure 6.7.2 applies.

 

Note: ‘BHL’ means Bushfire Hazard Level and ‘BAL’ means Bushfire Attack Level. BHL is a broad categorisation of land as ‘low’, ‘medium’ or ‘high’ hazard, and is generally used at the strategic planning level. BAL is a term which derives its meaning from Australian Standard 3959-2018: Construction of buildings in bushfire-prone areas – ‘AS3959’ - and is usually more specific to individual development sites, and can be BAL-Low, BAL-12.5, BAL-19, BAL-29, BAL-40 or BAL-FZ (with the numbers representing kW/h per square metre of heat energy, and ‘FZ’ meaning ‘Flame Zone’).

 

The definition of ‘unavoidable development’ in SPP3.7 is very narrow, and is essentially limited to things like railway lines, telecommunications infrastructure or fire stations. The definition of ‘minor development’ is, however, somewhat broader, and is as follows (emphasis added) --

Refers to applications in residential built-out areas at a scale which may not require full compliance with the relevant policy measures. Classes of development considered under this definition, with the exclusion of applications for unavoidable development, are:

a single house on an existing lot 1,100m² or greater;

• an ancillary dwelling on a lot of 1,100m² or greater; and

• change to a vulnerable land use in an existing residential development.

 

‘Vulnerable land-use’ is then defined as -

A land use where persons may be less able to respond in a bushfire emergency. Examples of what constitutes a vulnerable land use are provided in the Guidelines.

 

The Guidelines (i.e. the WAPC’s Guidelines for Planning in Bushfire Prone Areas) provide the following additional advice (emphasis added) -

Typically, vulnerable land uses are those where persons may be less able to respond in a bushfire emergency. These can be categorised as one or more of the following:

·   land uses and associated infrastructure that are designed to accommodate groups of people with reduced physical or mental ability such as the elderly, children (under 18 years of age), and the sick or injured in dedicated facilities such as aged or assisted care, nursing homes, education centres, family day care centres, child care centres, hospitals and rehabilitation centres;

·   facilities that, due to building or functional design, offer limited access or the number of people accommodated may present evacuation challenges, such as corrective institutions (prisons) and detention centres;


 

·   short stay accommodation or visitation uses that involve people who are unaware of their surroundings and who may require assistance or direction in the event of a bushfire, such as bed and breakfast, caravan park and camping ground, holiday house, holiday accommodation, home business, serviced (short stay) apartment, tourist development and workers’ accommodation.

 

Given the above, a change of use of a dwelling to a holiday house can only be supported on a site of BAL-40 or greater where the site is within a residential built-out area (unless a ‘risk assessment’ has been provided and peer reviewed as per the Final Position Statement). Neither SPP3.7 nor the Guidelines, however, includes a definition or description of what that term means. A decision to approve or refuse an application for a holiday house/home, though, can turn substantially on whether a site is considered to be in a residential built-out area or not. The City has to make such decisions on a regular basis.

 

The City also has to provide pre-application advice to existing and prospective owners about whether a property is in a residential built-out area on an even more regular basis. In substantial part to address this apparent shortcoming in SPP3.7 and the Guidelines, the Final Position Statement contains a definition of ‘residential built-out area’, as follows (emphasis added) -

 

A lot that has access to reticulated water and is within or contiguous with, an urban area or town (or similar).

 

A similar definition was contained in the Draft Position Statement, and also considered when the Council considered the Draft Bushfire Policy in March 2019. Because the decision as to whether a site is in a residential built-out area or not can be so consequential, both the Draft Bushfire Policy and the Revised Bushfire Policy include, as Appendix One, a map identifying ‘Residential Built-Out Areas’. In the absence of a map, advice and decisions as to whether a site is in such an area would rest on the judgement of individual officers (or, potentially, the Council, if an application was determined by the Council itself) as to whether a site is ‘within or contiguous with, an urban area or town (or similar)’. As such, it is seen as appropriate to include a map of Residential Built-Out Areas in the Bushfire Policy.

 

Both DFES and DPLH indicated in their submissions that they consider the Residential Built-Out Areas illustrated on the map in the Draft Bushfire Policy to be ‘excessive’. In the main, City officers do not agree with that assessment, as the areas identified were considered to be generally consistent with the definition in the Draft and Final Position Statements. It is, however, worth identifying and discussing some of the areas identified, where the assessment is less ‘clear cut’.

 

There are two areas of the City where reticulated water is available, but which have not been identified as Residential Built-Out Areas, because they are not considered to be within or contiguous with urban areas. The first of those is the ‘Ambergate Heights’ rural-residential area (note that the rural-residential lots, also in Ambergate, on St Andrews Lane do not have reticulated water). The second is a small portion in the north-western corner of ‘The Commonage’ (parts of Quedjinup Drive and some connecting roads).

 

There are several areas where reticulated water is not available, but which were identified as Residential Built-Out Areas in the Draft Bushfire Policy, because they were considered to be within or contiguous with urban areas. Those consist of rural-residential areas: on Glenview Drive, just to the north of Vasse; some properties on Red Gum Way, in the Vasse/Dunbarton area; in Reinscourt; and in Wonnerup. Especially given the DFES and DPLH concerns, it is recommended that these areas not be identified as Residential Built-Out Area – and that position is reflected in the Revised Bushfire Policy.

 

There are four areas where reticulated water is available, and which are considered to be urban or contiguous with urban areas, and which were identified as Residential Built-Out Areas in the Draft Bushfire Policy, but where there may be some question as to whether they qualify as ‘urban’ (noting that ‘urban’ is not a defined term in this context). Those areas are: Yallingup townsite; Eagle Bay townsite (other than small pockets around Gaia Close, Gypsy Street and Caladenia Close – which is proposed to be removed from the identified area); the Bunker Bay settlement; the ‘Tourism’ zoned properties on the northern side of Caves Road, to the west of and adjoining Dunsborough townsite; and the mainly residential properties either side of Caves Road, in the Marybrook/Siesta Park area, as well as some small contiguous areas. It is true that, because of the small size and relative isolation of the first three of those settlements, they are less ‘urban’ and at somewhat higher risk than other urban areas in the City, and it is therefore less clear that they should be considered Residential Built-Out Areas, when compared to Dunsborough or Busselton. Note there is currently no reticulated water available at Smiths Beach.

 

Both Yallingup and Eagle Bay, however, are well-established and reasonably sized settlements in a WA context, and there are volunteer fire brigades based in both. In that context it is seen as reasonable to consider them to both be ‘urban areas’. The same cannot, however, be said of the Bunker Bay settlement. Given that, and given the DFES and DPLH concerns, it is recommended that Bunker Bay not be identified as a Residential Built-Out Area – and that position is reflected in the Revised Bushfire Policy. This change only reflects a small number of lots, and in most cases development sites in the affected areas should be able to achieve a BAL rating of less than BAL-40, meaning that the change may not have much or any practical impact.

 

The ‘Tourism’ zoned properties on the northern side of Caves Road, to the west of and adjoining Dunsborough townsite, are also recommended to be excluded from the Residential Built-Out Area, as they are not properly contiguous with Dunsborough –again,  the practical impact of this is limited, though, as because of the zoning, proposals for Minor Development are unlikely to emerge. The mainly residential properties either side of Caves Road, in the Marybrook/Siesta Park area are, however, considered to be contiguous with either Busselton or Dunsborough.

 

Most of the rural-residential area in Vasse, including the area often referred to as ‘Dunbarton’, between the Busselton Bypass and Rendezvous Road has reticulated water and is considered to be contiguous with an urban area – i.e. Busselton north of the Busselton Bypass and, in time, with Vasse to the west. There is a small area, along part of Red Gum Way, which does not have reticulated water, and is proposed to be removed from the identified area (but, again, that probably has limited practical impact).

 

There are also areas like Meelup Regional Park or the Vasse-Wonnerup Wetlands, which were simply included in the identified Residential Built-Out Area in the Draft Bushfire Policy for the sake of making the map relatively simple, but which obviously do not contain any properties which would be subject of applications where the designation would have any practical impact – i.e. there will never be a valid application for approval or a holiday home in Meelup Regional Park. An effort has, though, been made to rationalise the identified boundary to avoid identifying such areas – although there is also no practical impact from those changes.

 

A further textual change has also been made to allow a site to be considered part of the Residential Built-Out Area if it is close or adjacent to areas identified on the map, but has either been excluded incorrectly (because of a gap in the City’s understanding of the extent of the reticulated water network) or because extension of the reticulated water network has occurred, or is proposed by the applicant (and extension of the network would be a condition of approval, in such instances).

 

Maps illustrating the proposed Residential Built-Out Area set out in the Revised Policy, as well as showing town planning scheme designations and the reticulated water network, are included as Attachment E.

Asset Protection Zones

A number of the detailed changes to the Bushfire Policy relate to guidance around Asset Protection Zones (‘APZs’ – which are low fuel areas, to be established around dwellings or other habitable buildings, or non-habitable buildings in proximity of habitable buildings). The required width of an APZ is determined by the desired BAL, as well as the extent and nature of vegetation in the vicinity of the site (which is generally assumed at the outset to be in an unmanaged state), and the slope of the land (with higher risk attributed to downslope vegetation). There are different methodologies which can be applied to make that assessment, of varying degrees of sophistication, but fundamentally, the higher the BAL, the lower (or smaller) the APZ required, and vice versa. The framework requires that an APZ must be accommodated wholly within the subject property, overlap substantially with an APZ required on an adjoining property, or, if it extends beyond the property, its implementation secured via a ‘perpetual agreement’.

 

On level ground, even with the highest risk vegetation adjacent to the development, construction to the BAL-Low standard would be possible with a 100 metre wide APZ. Allowing or requiring such a large APZ would, however, require management of very extensive areas of vegetation, having potentially significant landscape and environmental impact, and often be in conflict with the understanding and rationale when lots were first created – which would often have been that the landscape and environmental values of the land would be protected. Such a large APZ also significantly increases the risk of costs, complications and conflicts associated with State and Commonwealth environmental laws.

 

Other than on rural or larger rural-residential properties it is also unlikely that the space will be available to accommodate a 100 metre APZ. Management of such a large area is also a substantial burden on the landowner, and a substantial compliance burden for the City (a 100 metre APZ around a 20 metre by 20 metre square area, realistically towards the smaller end of what is likely with a dwelling and outbuilding on a typical rural-residential property, means that the APZ has a total area of nearly 3.5ha).

 

Again, on level ground, under AS3959 an APZ of as little as 10 metres width could be permitted where construction is to the BAL-FZ standard. Other than in very limited circumstances, and where it is unavoidable, however, the State Bushfire Framework does not generally support development which requires construction at the BAL-40 standard or above without a risk assessment that has been prepared and peer reviewed by a Level 3 bushfire consultants and is to the City’s satisfaction.

 

The State Bushfire Planning Framework essentially allows proponents to make their own choices as to how to balance the BAL and APZ, allowing a BAL of BAL-Low, BAL-12.5, BAL-19 or BAL-29, and an APZ of as much as 100 metres or as little as 14 metres in the case of vegetation types common in the District (the latter on level ground, where the natural vegetation type is ‘woodland’ and construction is to the BAL-29 standard). On most land in the District, though, given the character of the vegetation and the slope of the land, an acceptable outcome can usually be achieved with construction at the BAL-19 or BAL-29 standard, and an APZ of 14-31 metres.

 

Where new construction is involved, the costs of building to the BAL-19 standard are reasonable (BAL-29 is typically a little higher – note that the price premium for building to a BAL standard has generally reduced over time, as industry has adapted), and the higher construction standard provides a level of protection against ember attack (which can occur at a substantial distance from a fire). An APZ of up to 25 metres can also usually be accommodated on the subject property or, on smaller properties, will overlap with an APZ required on an adjoining property; and is also of a size that the landscape and environmental impacts will usually be reasonable.

 


 

City officers are also conscious of the compliance burden and communication complexities associated with APZ requirements that vary substantially from site to site – which may occur in some cases where the character of those sites is otherwise similar. APZ requirements will ordinarily need to be set out in a ‘Bushfire Management Plan’ (‘BMP’) for the site, which will need to be read and understood by the landowner and/or their contractors, as well as the City officers responsible for enforcement of the notice (i.e. Rangers) – who need to inspect several thousand properties each and every year, and cannot reasonably be expected to manage that task if APZ requirements are unique for each site.

 

It is for the reasons set out above that the Draft Bushfire Policy sought to generally set APZs at a maximum of 25 metres width (and, as a result, BALs at BAL-19 or BAL-29), other than where circumstances require either a larger APZ to reduce the BAL down to BAL-29 (which may arise if there was downslope vegetation on a relatively steep slope). A similar requirement was set out in the City’s local planning policy that was developed and in place prior to the State’s current framework being introduced – and was generally well understood and accepted at that time.

 

As a result of feedback received through the consultation process, a range of APZ-related changes to the Bushfire Policy are proposed, and reflected in the Revised Bushfire Policy. Those changes include recognising that roadways and some other areas, notably lawns and other ‘Low-Threat Vegetation’ are consistent with the purpose of an APZ. It is also considered worth setting out the high-level planning law/policy rationale for the recommended approach more explicitly.

 

When development approval is required, the City must consider the application against the relevant ‘matters to be considered’. Those matters include safety, landscape and environmental values, as well as local planning policies. The proposed approach seeks to set out, in local planning policy, how the City intends to address those sometimes competing matters in its assessment of applications for development approval. Changes to reflect that involve the addition of an additional purpose statement, and more explicit statements about landscape/visual impact in the form of an explanatory note.

 

Partial building upgrades

Where new construction is proposed, it is usually practicable to build to the designated BAL. Where a change-of-use to an existing building is proposed, however, it can often be very difficult and/or expensive to do so. This situation applies most commonly where development approval for a change-of-use to a holiday home is being sought for an existing, older dwelling, built before current BAL construction requirements were in place. The State Bushfire Planning Framework ordinarily, however, requires upgrade to the determined BAL as a condition of development approval.

 

The State Bushfire Planning Framework does allow some discretion to not require building upgrades to the determined BAL for ‘Minor Development’ (which includes a holiday home proposed in a Residential Built-Out Area). That is through consideration against clause 6.7.1 of SPP7.3, which sets out that -

Minor development in areas where BAL-40 or BAL-FZ applies is to be assessed under the requirements of policy measure 6.5, with the addition of a statement against each of the following in the Bushfire Management Plan:

(a)      where full compliance of 6.5(c) cannot be achieved within the boundary of the development site, evidence must be provided demonstrating to the fullest extent possible how the bushfire protection criteria have been addressed and provide justification for those criteria that have not been met;

(b)      ensure that the bushfire hazard level is not increased and/or the ability to manage bushfire related hazards on adjoining lands is not otherwise adversely affected;

(c)       ensure that the siting of the buildings within the boundary of the development site has been optimised to reduce the bushfire impact;

d)        give holistic consideration to existing emergency services in the area, existing road networks, water provision, existing places that could function as emergency evacuation centres in a bushfire event, the surrounding landscape, issues that may arise in the course of a bushfire both during and post event, and any other contextual issues relevant to the application of bushfire risk management measures.

 

The ‘risk assessment’ process set out in the Final Position Statement also allows some discretion to be exercised.

 

Note that clause 6.7.1 appears to offer this discretion only where BAL-40 or BAL-FZ applies, and there is no clause which offers the same discretion for what would, all else being equal, be lower risk sites, to which BAL-29 or lower applies. It is not considered appropriate to interpret SPP3.7 in that fashion, and given the standing of State Planning Policies, it is considered that the City has the discretion and that it is a sound practice to interpret this clause as if it applied to sites at BAL-29 or lower, as well as BAL-40 and above.

 

The question that then arises, though, is that if it is not possible to fully upgrade to meet the determined BAL, is it possible to partially upgrade to get closer to meeting the determined BAL? In simple, practical terms it may be. To determine whether that is sensible, though, it is necessary to understand the relationship between town planning and building control regulation. It is also necessary to understand the role and professional capacity of bushfire practitioners and City officers.

 

Under the building legislation, one of the exceptions from compliance with the bushfire protection related applicable building standards is works to a ‘relevant building’, if the work is commenced prior to 1 May 2021. That arises through r31BA(4) of the Building Regulations 2012 (Building Regulations) – see ‘Statutory Environment’ below. Relevant building in that context would include works to upgrade a dwelling built prior to contemporary standards for bushfire protection coming into effect. That could potentially allow a local government to grant a development approval for use of an existing dwelling as a holiday home conditional on partial upgrade of the dwelling, but not full upgrade to meet the determined BAL – but only if the works were commenced prior to 1 May 2021. A development is normally conditioned to require ‘substantial commencement’ within two years of the date of decision, meaning a development approval granted at the time of writing, or any time thereafter, could be commenced on or after 1 May 2021.

 

If those works were not commenced by that date, however, unless the responsible Minister amends the Building Regulations to extend that date, a proponent could find themselves with a development approval that cannot be implemented – as a building permit would still be required for the works, and the building permit could only be issued if it provided for full upgrade to the determined BAL. The local government could also not reasonably amend the development approval to not require the partial upgrades to the building, as in making the original decision it has determined that those upgrades are necessary to achieve a satisfactory bushfire risk outcome (if the upgrades were not necessary to achieve that, they should not have been made a condition of approval in the first instance).

 


 

Further, it is not clear how bushfire practitioners or City officers would assess the effectiveness of partial building upgrades as a means or mitigating bushfire risk. The BAL standards reflected in AS3959 have been developed through a rigorous (albeit no doubt imperfect) technical and consultative process including recognised experts in the field – which includes both highly credentialed bushfire practitioners, but also fire engineers. Neither bushfire practitioners nor City officers, though, are able to properly understand and assess the bushfire risk mitigation impacts of partial building upgrades. As part of the consultation process, a number of bushfire practitioners involved expressed the concern set out above.

 

Given the above, the Revised Policy removes provisions that were present in the Draft Policy and which allowed for consideration of partial building upgrades as a means of obtaining approval for Minor Development, in a context where full upgrade to the determined BAL is not being proposed and/or is not practicable.

 

Bushfire Notice

The head of power for local government bushfire notices is the Bush Fires Act 1954 (Bushfire Act); it is  s33(1) which is the head of power for setting requirements to create and maintain firebreaks and low fuel areas (e.g. APZs). Whilst there have been minor amendments from time to time, the Bushfire Act in general, and s33(1) in particular, has not been amended substantively, including since the introduction of a range of changes to town planning and building controls, and other changes in the emergency services space implemented since the major Margaret River, Roleystone and Yarloop fires of the previous decade. There have been efforts to review the emergency services legislation more broadly which appear to have some momentum currently, but it is fair to say that in many ways the Bushfire Act is not ‘fit-for-purpose’ as a head-of-power for bushfire notices in the contemporary context, which is considerably more challenging and complex than would have been the case in 1954. For instance, there is no mention of BMPs in the Bushfire Act, and no clear power in the Bushfire Act or any other legislation relating to the adoption, amendment or revocation of a BMP.

 

The State Bushfire Planning Framework nevertheless assumes (and explicitly states) that local government bushfire notices will be the means by which local governments will ensure ongoing compliance with APZ and other bushfire risk mitigation measures on which town planning and building control decisions are made. In the absence of that, such compliance would need to be achieved via monitoring and enforcement of conditions of development approval (and the planning legislation is arguably even less ‘fit-for-purpose’ in terms of providing an efficient and effective means for local governments to ensure timely compliance). The building legislation does not provide a comparable mechanism, and in the absence of the bushfire notice, it is difficult to see how ongoing compliance could be achieved in situations where development approval is not required (noting that a significant proportion of the residential development which occurs is exempt from the need to obtain development approval).

 

Given the above, there is seen to be a need to align the bushfire notice with the town planning and building control decisions that the City makes – and that has been a major focus in developing the Proposed Notice. As already noted in ‘Background’, the intention is that the Proposed Notice, once finalised, will be supplemented by more user-friendly guidance for the community (which it is envisaged will be developed only once the formal notice has been finalised) – and that the Notice itself in a formal sense is limited in its scope to what actually has to be included in a Notice adopted under the Bushfire Act – whereas a substantial portion of the Existing Notice simply reiterates requirements that are set out in other controls/legislation.

 


 

As a result, the Proposed Notice is considerably shorter, in terms of the total amount of text. An analysis of the provisions in the Existing Notice (other than those relating to APZs and firebreaks or similar) is provided as Attachment K, and clearly illustrates that much of the content of the Existing Notice is redundant, as it is merely reiterating controls that already apply through other means (but is content that would be included in the more user-friendly guidance for the community it is envisaged will be developed to sit alongside the formal notice).

 

Other key issues considered in the development of the Proposed Notice are:

·        The relationship between the Notice and BMPs:

Many BMPs are quite dated and not considered entirely clear and/or adequate. The proposed Notice sets out that it prevails over a BMP, unless the BMP was endorsed after contemporary planning controls came into effect (i.e. December 2015), or compliance with the Notice would leave the landowner in breach of environmental laws.

·        The categories of land to which different requirements should apply, and those requirements:

The existing notice identifies eight different categories of land. Whilst they have been mapped, and in practice categorization depends on that map, it is not always clear what category a particular parcel of land is in. In developing the Proposed Notice, there was an effort to reduce the number of categories, and to only specify different categories if there is a substantive difference in the requirements that apply.

The Proposed Notice identifies four categories: ‘Urban’, ‘Urban – Bush Fire Prone’, ‘Rural-Residential’ and ‘Rural’. These categories do not necessarily align to their town planning scheme zone equivalents, but are considered the most intuitive terms to use.

The Urban category applies to urban or townsite areas not identified by the State as ‘Bush Fire Prone’, and the Urban – Bush Fire Prone is urban or townsite areas that are identified as Bush Fire Prone. In the Urban category, the Proposed Notice requires management of dry grass or other vegetation across the whole of the lot, but there are no further requirements (for instance, not allowing branches of trees to overhang roofs, which is a requirement of the Existing Notice, is requirement that has been removed). In the Urban – Bush Fire Prone category, the requirement to manage dry grass applies, as well as a requirement for a 25 metre APZ (to the extent that can be accommodated within the subject lot).

The Rural-Residential category applies to most Rural-Residential zoned lots, other than those over 20 hectares (which are in the Rural category), or smaller ones below around 4,000 square metres (in one of the Urban categories). The Rural category applies throughout the rest of the District. In the Rural-Residential category, the requirements are as per the Urban – Bush Fire Prone category, but in addition there is a requirement for boundary firebreaks. In the Rural category, the requirement is for a 25 metre APZ and boundary firebreaks.

·        How best to describe the categories of land to which different requirements may apply:

The decision is between using a map and a form of words to do this (e.g. lot sizes). Officers do not think that a form of words can be arrived at that is sensible, clear and enforceable, and so use of a map formally adopted by the Council is proposed. In practice, this information would be most easily accessible via the City’s GIS system – versions of which are available both internally and to the public. It is envisaged that the map would be reviewed and re-Gazetted on an annual basis to identify anomalies, and also to reflect the fact that larger lots can be subdivided and the land affected should be moved to a different category.


 

There are, however, two exceptions to the use of mapping to describe the categories. Firstly, there are some large, un-subdivided and/or larger Rural-Residential lots. With these, it has been considered more practical to include wording in the Proposed Notice to the effect that such parcels will be considered to be in the ‘Rural’ category if they over 20 hectares in area. Secondly, the differentiator between the ‘Urban’ and ‘Urban – Bush Fire Prone’ categories is merely that the latter is identified by the State as ‘Bush Fire Prone’. The State reviews that mapping on an annual basis, and those changes can be effected without a need to re-Gazette (at the City’s cost) the City’s map if the approach proposed is adopted.

·        Whether the APZ Standard is workable or reasonable:

It is considered that aspects of the APZ Standard, especially the requirement that there be no trees over 5.0 metres in height within 6.0 metres of a habitable building, are not workable or reasonable. There is, however, not currently considered to be a workable alternative. This is an issue which it is envisaged will be further explored during consultation.

·        APZs which cannot be accommodated entirely within the subject lot:

Consideration was given to requiring an APZ on any ‘land’ within a specified distance of a habitable building, rather than any ‘lot’. The effect of that would be that landowners may be required to establish and maintain an APZ to assist in the protection of a habitable building on a neighbouring site. It was decided not to do so, principally because of the impact it would have on the neighbouring site and landowner, and the compliance complications it would create for the City. It may also create an expectation that the City take the same approach with its own land (with consequent impacts on resourcing and priotitisation).

·        Boundary firebreaks in areas where ‘strategic firebreak’ networks have been established through BMPs or similar:

Many of the strategic firebreak networks established in this way are not considered to be sufficiently effective. As a result, a decision has been made to require boundary firebreaks in the Rural-Residential category, even where there are strategic firebreak networks, unless the BMP is a more recent one (i.e. on or after 7 December 2015).

 

It should be noted that, if the provisions of the notice are not considered appropriate in a particular instance, other than considering and addressing the issue as part of periodic review, there are three means of establishing different requirements for particular sites:

·        Issuing a site-specific notice (which does not require Gazettal or a Council resolution);

·        Approving a variation (which would need to be done on annual basis); or

·        The landowners having a BMP prepared, and then subsequently obtaining the City’s endorsement of that BMP.

Statutory Environment

Planning framework

The key statutory environment from a planning framework perspective is set out in the Planning and Development Act 2005 (Planning Act) and related subsidiary legislation, including the City of Busselton Local Planning Scheme No. 21 (Scheme) and the Planning and Development (Local Planning Schemes) Regulations 2015 (Regulations), especially Schedule 2 (‘Deemed Provisions’) of the Regulations, which form part of the Scheme.

 

The Planning Act sets out powers of the WAPC to prepare and adopt ‘State Planning Policies’ (SPPs) which may, inter alia, ‘make provision for any matter which may be subject of a local planning scheme’ (s26(3)).

 

Clauses 3-6 of the Deemed Provisions sets out that a local government may make, amend or revoke a ‘local planning policy’. The Deemed Provisions also set out that local planning policies must be consistent with the Scheme. Essentially this means that a local planning policy in almost all instances may only guide an exercise of discretion already allowed under the Scheme, but cannot introduce or remove a discretion that the Scheme does not already provide. Other than a ‘minor amendment’ (pursuant to clause 5(2) of the Deemed Provisions), any decisions to adopt, amend or revoke a local planning policy involves an adoption of the proposal by the Council, followed by a period of consultation, and subsequent further consideration of the proposal by the Council, including consideration of any submissions received.

 

Clause 67 of the Deemed Provisions sets out ‘matters to be considered’ in the assessment of applications for development approval. Clause 67(c) of the Deemed Provisions identifies ‘any approved State planning policy’ and clause 67(g) identifies any ‘local planning policy for the Scheme area’ as matters that must be considered.

 

There are various other requirements to consider SPPs set out in the Act, Regulations and Scheme, and which relate to applications for development approval, as well as the preparation, review and amendment of town planning schemes, Structure Plans, Local Development Plans and Activity Centre Plans. The State Administrative Tribunal (SAT) gives considerable weight to SPPs in their consideration of planning matters; and original decision-makers (including local governments) are also required to give considerable weight to SPPs.

 

Part 10A of the Deemed Provisions identifies controls related to applications for development approval in ‘Bushfire Prone Areas’. Bushfire prone areas for the purpose of planning decisions are identified through orders made under s18P of the Fire and Emergency Services Act 1998 (FES Act). The Deemed Provisions also incorporate Australian Standard AS3959-2009: Construction of buildings in bushfire-prone areas (AS3959).

 

Building control framework

The building control framework is set out in the Building Act 2012 (Building Act) and Building Regulations 2012 (Building Regulations), which also provide a head-of-power for the BCA in WA.

 

Orders under s18P of the FES Act similarly identify areas where consideration of bushfire issues is required pursuant to the building legislation. The building legislation also incorporates AS3959 as a ‘building standard’. Under the building legislation, all ‘building work’, with some limited exceptions, requires a ‘building permit’ and must be undertaken in accordance with the ‘applicable building standards’ – that includes determining and building to the determined BAL in an identified Bushfire Prone Area.

 

Bushfire notice framework

The statutory framework for the bushfire notice is set out in the Bush Fires Act 1954 (Bushfire Act), specifically Section 33(1), which states that, inter alia -

(1)     Subject to subsection (2) a local government…may,…as a measure for preventing the outbreak of a bush fire, or for preventing the spread…of a bush fire…give notice in writing…to all owners or occupiers of land in its district by publishing a notice in the Government Gazette and in a newspaper circulating in the area requiring…them…to do…all or any of the following things —

 

(a) to…clear upon the land fire-breaks in such manner… as are specified in the notice, and thereafter to maintain the fire-breaks…;

(b) to act as…specified…with respect to anything which is upon the land, and which…is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire,

and the notice may require the owner or occupier to do so —

(c) as a separate operation, or in co-ordination with any other person, carrying out a similar operation on adjoining or neighbouring land;…

 

Sections 24G(2) and 25(1a) are also of particular relevance to the Proposed Notice, as they establish powers for local governments to make notices relating to burning of garden refuse and camp/cooking fires.

 

There is no further statutory environment directly relevant to bushfire notices, other than that set out in the Bushfire Act itself.

Relevant Plans and Policies

Key policy guidance is set out in State Planning Policy 3.7: Planning in Bushfire Prone Areas (SPP3.7) and the associated Guidelines for Planning in Bushfire Prone Areas (Guidelines). The Final Position Statement also forms part of the relevant planning framework, by virtue of clause 3.1 of State Planning Policy 1.0: State Planning Framework (SPP1), but the ‘weight’ to be attached to such statements in decision-making is less than what should be attached to the content of an SPP. Collectively, these documents, as well as the overarching statutory environment, and further documents incorporated by reference, constitute what is referred to in this report as the ‘State Bushfire Planning Framework’.

 

Prior to the introduction of SPP3.7 and related changes to legislation, the City had a bushfire local planning policy. It was considered that the State Bushfire Planning Framework had made that local planning policy redundant and, as a result, that earlier policy was revoked. As set out in the March 2019 report, however, there is now seen to be a need for some local planning policy guidance, albeit more limited and different in scope to what was previously in place.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

Since adoption of the Local Planning Policy proposals, the City has undertaken consultation in accordance with the requirements of the Scheme, as well as having more intensive consultation and engagement with the Department of Planning, Lands & Heritage (‘DPLH’), Department of Fire & Emergency Services (‘DFES’) and with a number of bushfire planning practitioners operating in the region. In particular, two workshop sessions were held with practitioners which City officers found very useful.

 

In preparing the Proposed Notice, officers have reviewed the bushfire notices of a range of other local governments, but have not found any examples which could readily be adapted to properly meet the City’s purposes. The City has also sought advice from DFES, but had not received any substantive advice at the time of writing. A working draft of the Notice was also workshopped with bushfire practitioners.

 

As much of the consultation was interactive, it is not practicable to produce a ‘schedule of submissions’ as might ordinarily be done. A ‘Consultation Summary’ has, however, been prepared and is provided as Attachment F.

Further consultation on the Notice is also recommended. It is also envisaged that the Bushfire Policy may be reviewed and subject of further consultation within the next 12 months or so, because of the dynamic nature of the State Bushfire Planning Framework.

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place.

 

The key risks associated with the Bushfire Policy are considered to be reputational, and there are both upside and downside risk dimensions associated with implementation of the officer recommendation. The upside risk is essentially that it should be clearer when, where and under what conditions the City will approve development in Bushfire Prone Areas. The downside risk is that some expectations of when and where development or change-of-use may be approved will not be able to be met and/or it will be more clear those expectations cannot be met. That is most likely to arise on BAL-40 sites in The Commonage, where changes of use of a dwelling to a holiday home could not be supported, as The Commonage is not identified as a Residential Built-Out Area (note that this is, however, consistent with current practice).  Additionally some reputational downside risk may exist where a person wants to build to a BAL lower than BAL-19 through provision of a higher APZ than 25m.  Overall the downside reputational risk can be assessed as follows:

Risk Category

Risk Consequence

Likelihood of Consequence

Risk Level

Reputation

Minor

Possible

Medium

 

Because there is no change of substance associated with the Revised Holiday Homes Policy, there are not considered to be any significant risks associated with implementation of the officer recommendation.

 

Because the Proposed Notice is recommended to be adopted for consultation only at this stage, there are no significant risks associated with implementation of the officer recommendation. Ultimately, though, adoption of a new notice would be expected to be reduce both environmental reputational risks to the City.

Options

As an alternative to the proposed recommendation the Council could:

1.    Undertake further consultation before adopting the Bushfire Policy;

2.    Adopt the Proposed Notice without consultation; and/or

3.    Make changes to the proposals.

CONCLUSION

The recommendation would allow the City to make significant strides forward in improving its approach to assessment of applications for development approval in bushfire prone areas and progress the review of the bushfire notice, as well as the City’s capacity to provide useful advice to the community regarding both.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

Within one month of the Council making a resolution consistent with the officer recommendation.

 


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6.4

Attachment a

Draft Bushfire Policy

 


 


 


 


 



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6.4

Attachment b

Revised Bushfire Policy

 


 


 


 


 



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6.4

Attachment c

Existing Holiday Homes Policy

 


 


 


 


 


 


 


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6.4

Attachment d

Proposed Holiday Home Policy

 


 


 


 


 


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6.4

Attachment e

Residential Built-Out Areas Map Showing Infrastructure and Zoning

 


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6.4

Attachment f

Consultation Summary

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


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6.4

Attachment g

Final Position Statement

 


 


 


 


 


 


 


 



 


 


 


 


 


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6.4

Attachment h

Existing Notice

 


 


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6.4

Attachment i

Proposed Notice

 


 


 


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6.4

Attachment j

Bushfire Notice (Map)

 


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6.4

Attachment k

Analysis of Provisions in Existing Notice

 


 


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6.4

Attachment l

Revised Bushfire Policy With Committee Amendments

 


 


 


 


 



Policy and Legislation Committee

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6.4

Attachment m

Proposed Holiday Homes Policy With Committee Amendments

 


 


 


 


 

 


Policy and Legislation Committee                                  107                                                           26 February 2020

7.               General Discussion Items  

Nil

 

8.               Next Meeting Date

Wednesday, 1 April 2020

 

9.               Closure

The meeting closed at 11.04am.

 

 

 

THESE MINUTES CONSISTING OF PAGES 1 TO 107 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 1 April 2020.

 

DATE:___________________         PRESIDING MEMBER: _________________________