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

CITY OF BUSSELTON

MINUTES FOR THE Council MEETING HELD ON 10 February 2021

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening / aCKNOWLEDGEMENT OF COUNTRY / ACKNOWLEDGEMENT OF Visitors / DISCLAIMER / NOTICE OF RECORDING OF PROCEEDINGS. 3

2....... Attendance. 3

3....... Prayer. 4

4....... Application for Leave of Absence. 4

5....... Disclosure Of Interests. 4

6....... Announcements Without Discussion.. 4

7....... Question Time For Public. 4

8....... Confirmation and Receipt Of Minutes. 6

Previous Council Meetings. 6

8.1          Minutes of the Council Meeting held 27 January 2021. 6

Committee Meetings. 6

8.2          Minutes of the Policy and Legislation Committee Meeting held 27 January 2021. 6

9....... RECEIVING OF Petitions, Presentations AND DEPUTATIONS. 7

Petitions. 7

9.1          PETITION: REZONING GEOGRAPHE BAY ROAD, DUNSBOROUGH LOTS TO R60. 7

10..... QUESTIONS BY MEMBERS OF WHICH DUE NOTICE HAS BEEN GIVEN (WITHOUT DISCUSSION). 11

11..... Items brought forward.. 11

ADOPTION BY EXCEPTION RESOLUTION.. 11

13.2        AMENDMENT NO. 48 TO LOCAL PLANNING SCHEME NO. 21 (PORTION OF LOT 1 NO. 99 CAUSEWAY ROAD, BUSSELTON) - CONSIDERATION FOR INITIATION FOR ADVERTISING.. 12

15.1        PROPOSED AUSTRALIAN UNDERWATER DISCOVERY CENTRE. 40

17.1        COUNCILLORS' INFORMATION BULLETIN.. 72

ITEMS FOR DEBATE. 75

13.1        APPLICATION FOR DEVELOPMENT APPROVAL (DA 17/0866) - PROPOSED INDUSTRY - EXTRACTIVE (GRAVEL) - LOT 2 NUTTMAN ROAD AND LOT 3 CHAPMAN HILL EAST ROAD, CHAPMAN HILL. 75

18..... Motions of which Previous Notice has been Given.. 231

18.1        NOTICE OF MOTION - INITIATION OF SCHEME AMENDMENT 50. 231

19..... urgent business. 249

20..... Confidential Reports. 249

21..... Closure. 249

 


Council                                                                                      5                                                                10 February 2021

MINUTES

 

MINUTES OF A Meeting of the Busselton City Council HELD IN Council Chambers, Administration Building, Southern Drive, Busselton, ON 10 February 2021 AT 5.30pm.

 

1.               Declaration of Opening / aCKNOWLEDGEMENT OF COUNTRY / ACKNOWLEDGEMENT OF Visitors / DISCLAIMER / NOTICE OF RECORDING OF PROCEEDINGS

The Presiding Member opened the meeting at 5.37pm.

The Presiding Member noted this meeting is held on the lands of the Wadandi people and acknowledged them as Traditional Owners, paying respect to their Elders, past and present, and Aboriginal Elders of other communities who may be present.

2.               Attendance

Presiding Member:

Members:

 

Cr Grant Henley     Mayor

Cr Kelly Hick             Deputy Mayor

Cr Sue Riccelli

Cr Ross Paine

Cr Kate Cox

Cr Paul Carter

Cr Phill Cronin

Cr Jo Barrett-Lennard

Cr Lyndon Miles

 

Officers:

 

Mr Mike Archer, Chief Executive Officer

Mr Oliver Darby, Director, Engineering and Works Services

Mr Paul Needham, Director, Planning and Development Services

Mrs Naomi Searle, Director, Community and Commercial Services

Mr Tony Nottle, Director, Finance and Corporate Services

Mrs Emma Heys, Governance Coordinator

Ms Melissa Egan, Governance Officer

 

 

Apologies:

 

Nil

 

 

Approved Leave of Absence:

 

Nil

 

 

Media:

 

“Busselton-Dunsborough Times”

“Busselton-Dunsborough Mail”

 

Public:

 

58

 

3.               Prayer

The prayer was delivered by Pastor Axel Hagg of the Free Reformed Church of Busselton.

 

4.               Application for Leave of Absence 

Nil

 

5.               Disclosure Of Interests

Nil

 

6.               Announcements Without Discussion

Announcements by the Presiding Member

 

Nil

 

7.               Question Time For Public

Response to Previous Questions Taken on Notice

 

Nil

 

Question Time for Public

 

7.1             Mr Richard Stubbs

 

Question

Why do the ratepayers need high-rise development in the Dunsborough foreshore, given its charm and aesthetics, which are world class and unique?

 

Response

(Mayor)

The City’s planning scheme is constructed through consultation with the community but also looks at the reality that our communities need to grow. The reality is that a lot of our planning controls are taken out of the hands of Council by the Western Australian Planning Commission and the Minister for subdivisions and our town planning schemes, to ensure that local governments are cognisant of the need to grow and that growth is handled by good development and good planning. That was done through our town planning scheme which was gazetted four or five years ago. The notice of motion this evening is an amendment to that process.


 

7.2             Mr Peter De Cuyper

 

Question

In relation to the amendment to the Dunsborough foreshore, why is a decision being considered that would start something in motion, that actually would be a Pandora’s Box, when the appropriate advice is not complete?

 

Response

(Mayor)

I believe the question relates to two different issues. One is an application currently before the Joint Development Assessment Panel for the property on the corner of Geographe Bay Road and the other is the scheme initiation being proposed this evening.

 

Question

It seems one thing is driving the other. Are the Councillors sufficiently well informed before making a decision on one or the other of these items? My impression is, if it is passed, it would be a precedent.

 

Response

(Mayor)

I can safely say that it is not a precedent. We make amendments to our town planning scheme on a regular basis. It is an initiation of a process which has to go to the Western Australian Planning Commission and the Minister to allow an amendment to our town planning scheme. I would suggest, yes, Councillors understand the difference in what you are suggesting. We have received quite a few briefings on it. We are talking about the down-scaling of allowable development in certain properties along the beachfront of Geographe Bay Road, Dunsborough, from R80 to a lower level of R60. I think Councillors are suitably well informed to make a decision on that.

 

 

7.3             Mr Vernon Bussell

 

Question

In relation to Item 13.1 on the Agenda tonight, there has been an offer by Leeuwin Civil to contribute $20,000 towards a minimum 160m upgrade of the seal for Nuttman Road. I am prepared to contribute $10,000, which leaves a shortfall of $7,500 of the overall costs. Will Council make up the shortfall of $7,500?

 

Reponse

(Mayor)

Part of the resolution, if passed by Council, is that the CEO is authorised to negotiate in good faith with the applicants and yourself with a view to sealing approximately 160m.

 


 

Question

Why weren’t other options for access points closer to the bitumen considered?

 

Response

(Mayor)

Council will be considering the application submitted by the applicant, not hypothetical other alignments that may or may not be put in.

 

Response

(Mr Paul Needham, Director Planning and Development Services)

Principally, it was because there were submissions about potential impacts on vegetation in other locations. At Walters Road, there is a point where a properly constructed cross-over into the site could be built without having any impact on vegetation.

 

8.               Confirmation and Receipt Of Minutes

Previous Council Meetings

8.1             Minutes of the Council Meeting held 27 January 2021

Council Decision

C2102/013              Moved Deputy Mayor K Hick, seconded Councillor P Cronin

 

That the Minutes of the Council Meeting held 27 January 2021 be confirmed as a true and correct record.

CARRIED 9/0

Committee Meetings

8.2             Minutes of the Policy and Legislation Committee Meeting held 27 January 2021

Council Decision

C2102/014              Moved Deputy Mayor K Hick, seconded Councillor K Cox

 

That the Minutes of the Policy and Legislation Committee Meeting held 27 January 2021 be noted.

CARRIED 9/0

 


 

9.               RECEIVING OF Petitions, Presentations AND DEPUTATIONS

Petitions

9.1             PETITION: REZONING GEOGRAPHE BAY ROAD, DUNSBOROUGH LOTS TO R60

Council DecisioN AND OFFICER RECOMMENDATION

C2102/015              Moved Deputy Mayor K Hick, seconded Councillor R Paine

 

That Council receive the petition from Mr Tony Sharp on behalf of the Dunsborough Progress Association, requesting the rezoning of Geographe Bay Road, Dunsborough from R80 to R60.

CARRIED 9/0

 

A petition was received from Mr Tony Sharp on behalf of the Dunsborough Progress Association (the Petitioner) on 20 January 2021 regarding the rezoning of Geographe Bay Road, Dunsborough from R80 to R60.

 

The requirements for a petition to be heard by Council are set out by clause 6.9(1) of the City of Busselton Standing Orders Local Law 2018 (the Standing Orders), specifically that it:

(a)       be addressed to the Mayor;

(b)      be made by electors of the district;

(c)       state the request on each page of the petition;

(d)      contain the name, address and signature of each elector making the request;

(e)      contain a summary of the reasons for the request;

(f)       state the name of the person to whom, and an address at which, notice to the petitioners can be given; and

(g)       be respectful and temperate in its language.

 

The Presiding Member has the discretion to accept the Petition for consideration if it meets a majority of the above requirements.

 

The Petition was lodged by the Petitioner at the City’s Community Access Session on 20 January 2021 and was addressed attention to the Mayor. The subject of the Petition is the rezoning of Geographe Bay Road, Dunsborough, and this is stated on each page of the Petition.

 

The Petition is purportedly signed by 747 people, all of who are identified, by name and address, as electors of the district, and who are located within the area the subject of the Petition. The Petitioner has deleted any reference to signatories whose address is outside the district and not included them in the final number of petitioners (noting the number of petitioners is not a requirement to the receipt of a Petition).

 

The Petition meets the requirements of clause 6.9(1)(g), that is, the petition is respectful and temperate in its language. The Petition was presented by the Petitioner in person, and it will be assumed that this is the name and contact address for which notice to the petitioners can be given.

 

Although a summary of the reasons for the Petition is not contained in the Petition, as required by clause 6.9(1)(e), the Petitioner presented an outline of the reasons with the Petition at the Community Access Session. The Petitioner’s presentation containing the summary is attached.

 

It is officers’ advice that the Petition meets the majority of the requirements of the Standing Orders and it is therefore open to the Presiding Member to accept the Petition for consideration.

 

It is relevant to note that a Notice of Motion has been received which deals substantially with the same matter as the Petition. This Notice of Motion will be considered at this meeting (see item 18.1 of this Agenda) and contains an officers’ report in response. It is therefore recommended that the Petition be received by Council only.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                            

                            


Council

10

10 February 2021

9.1

Attachment a

Summary of Reasons for Petition

 



Council                                                                                      11                                                                10 February 2021

Presentations

Mr Lex Barnett, Managing Director, Taylor Burrell Barnett, representative of Mr Lindsay Allen, presented as a party with an interest in Item 18.1 ‘Notice of Motion - Initiation of Scheme Amendment 50’.

Mr Allen, as represented by Mr Barnett, was opposed to the motion.

Deputations

 

Nil

 

10.             QUESTIONS BY MEMBERS OF WHICH DUE NOTICE HAS BEEN GIVEN (WITHOUT DISCUSSION)

Nil

 

11.             Items brought forward

ADOPTION BY EXCEPTION RESOLUTION

At this juncture, the Mayor advised the meeting that, with the exception of the items identified to be withdrawn for discussion, the remaining reports, including the Officer Recommendations, will be adopted en bloc, i.e. all together.

 

Council Decision

C2102/016              Moved Councillor P Carter, seconded Councillor P Cronin

 

That the Officer Recommendations in relation to the following agenda items be carried en bloc:

13.2        AMENDMENT NO. 48 TO LOCAL PLANNING SCHEME NO. 21 (PORTION OF LOT 1 NO. 99 CAUSEWAY ROAD, BUSSELTON) - CONSIDERATION FOR INITIATION FOR ADVERTISING

15.1        PROPOSED AUSTRALIAN UNDERWATER DISCOVERY CENTRE

17.1        COUNCILLORS' INFORMATION BULLETIN

CARRIED 9/0

 


 


Council                                                                                      20                                                             10 February 2021

13.2           AMENDMENT NO. 48 TO LOCAL PLANNING SCHEME NO. 21 (PORTION OF LOT 1 NO. 99 CAUSEWAY ROAD, BUSSELTON) - CONSIDERATION FOR INITIATION FOR ADVERTISING

STRATEGIC GOAL

4. ECONOMY Diverse, resilient, prosperous

STRATEGIC OBJECTIVE

4.2 A community where local business is supported and in turn drives our economy

SUBJECT INDEX

Local Planning Scheme 21 Amendments

BUSINESS UNIT

Strategic Planning

REPORTING OFFICER

Planning Officer - Joanna Wilkinson

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

NATURE OF DECISION

Legislative: adoption of “legislative documents” such as local laws, local planning schemes and local planning policies

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Location Plan

Attachment b    Aerial Photograph

Attachment c    Development Guide Plan (DGP 135)

Attachment d   Development Approval (DA16/0400.01)  

 

Council Decision and Officer Recommendation

C2102/017              Moved Councillor P Carter, seconded Councillor P Cronin

That the Council resolves to:

1.         In pursuance of the Planning and Development (Local Planning Schemes) Regulations 2015, initiate Amendment No. 48 to the City of Busselton Local Planning Scheme No. 21 for community consultation, for the purposes of:

(a)       Amending Schedule 5 “Special Uses” by amending “Special Use No. 17 – Special Uses” as follows:

No.

Description of Land

Special Use

Conditions

17.

As identified on the Scheme map

The following uses are “D” discretionary:

a.    Service Station

b.    Warehouse/Storage

c.     Shop

d.    Restaurant/Café

e.    Garden Centre

f.     Takeaway Food Outlet

1.    The Shop land use is limited to a maximum gross floor area of 500m².

2.    The Takeaway Food Outlet is limited to a maximum gross floor area of 100m².

3.    The overall site is limited to a maximum gross floor area of 1,700m².

4.    Notwithstanding clause 4.5.1, development which exceeds these areas is expressly prohibited.

5.    Buildings shall not be located within 20m of the Causeway Road boundary.

 

 

 

6.    New development shall respond to the prominence of the site on Causeway Road, as an entry corridor to Busselton, by addressing the following matters:

a.    Buildings shall be articulated to break up perceived bulk and provide visual interest when viewed from Causeway Road and Bussell Highway;

b.    Building textures and elements shall maintain and enhance the scenic character of Causeway Road;

c.     Building materials shall include a mix of transparent glazing and opaque materials, with no blank facades visible from Causeway Road;

d.    Building services such as bin storage, utilities, storage tanks, firefighting equipment and the like shall be concealed so they are not visible from Causeway Road and Bussell Highway; and

e.    Landscape planting shall provide an attractive interface between buildings and car parking areas when viewed from Causeway Road, without impeding vehicle sight lines.

(b)       Amending Schedule 3 “Special Provision Areas” by deleting “Special Provision No. 15” (“SP15”).

2.         Amending the Scheme Map accordingly.

 

 

 

3.         Pursuant to Regulation 35 (2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), determine that Amendment No. 48 is a ‘standard amendment’ in accordance with r. 34 of the Regulations as it is:

(a)       an amendment relating to a zone or reserve that is consistent with the objectives identified in the Scheme for that zone or reserve;

(b)       an amendment that would have minimal impact on land in the Scheme area that is not the subject of the amendment;

(c)       an amendment that does not result in any significant environmental, social, economic or governance impacts on land in the Scheme area.

4.         Note that, as the draft Amendment is in the opinion of the Council consistent with Part V of the Planning and Development Act 2005 (Act) and Regulations made pursuant to the Act, upon preparation of necessary documentation, the draft Amendment be referred to the Environmental Protection Authority (EPA) as required by the Act, and on receipt of a response from the EPA indicating that the draft Amendment is not to be subject to formal environmental assessment, be advertised for a period of 42 days, in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015. In the event that the EPA determines that the draft Amendment is to be subject to formal environmental assessment, this assessment is to be prepared prior to advertising of the draft Amendment.

CARRIED 9/0

En Bloc

 

EXECUTIVE SUMMARY

Council is requested to consider initiating proposed Scheme Amendment No. 48 (the Amendment) to Local Planning Scheme No. 21 (the Scheme). The Amendment would facilitate clarification of the controls relating to a portion of Lot 1 Causeway Road, by changing Schedule 5 ‘Special Uses’ (SU17) of the Scheme through the introduction of several new ‘Special Use’ land uses. These “new” land uses are, in practice, currently operating at the site, but are ancillary/subsidiary to the predominant land use under the existing planning framework. It is proposed that the Amendment will better reflect what has been developed on the site by allowing the ancillary/subsidiary land uses to operate independently from the predominant land use, and by allowing for more flexibility for those land uses on the site, whilst not allowing significant additional development.

 

It is also proposed that the change to SU17 will include a number of conditions relating to the existing land uses. These conditions, plus the fact that the subject land is now developed, generally render the provisions of Schedule 3 ‘Special Provisions’ (SP15) to be superfluous. Retaining SP15 would result in an additional layer of unnecessary complexity, and therefore it is proposed that Schedule 3 ‘Special Provisions’ be altered by deleting SP15.

 

It is recommended that the proposal be supported, and that the Amendment be initiated/adopted for the purpose of community consultation.

 

BACKGROUND

Lot 1 Causeway Road is located approximately 2km south of the Busselton City Centre, at the intersection of Causeway Road and Bussell Highway. Lot 1 has a total land area of 1.1433 hectares, and is severed by Koorden Place. The southern portion, which is the subject of this proposal (the subject land) is 9,420m² in area and zoned ‘Special Use – Service Station/Plant Nursery’. The northern portion of Lot 1 is 2,013m² in area and zoned ‘Rural’ and is not subject to any part of this proposal. The subject land, and Lot 13 Koorden Place (immediately east of Ford Road and the subject land), is owned by the Mountney Family Pty Ltd.

The subject land is flat, triangular in shape, and bound by Koorden Place to the north, Causeway Road to the south west, and Ford Road to the east. It is adjacent to the roundabout at Bussell Highway which directs traffic into the Busselton City Centre via Causeway Road, or to other locations such as Vasse, Dunsborough, and Margaret River. Several commercial buildings have been developed on the subject land, including a ‘Service Station’ (Puma), a ‘Warehouse/Storage’ and ‘Shop’ outlet for fruit/vegetable wholesale and retail sales (Western Growers), and a ‘Takeaway Food Outlet’ for drive-through sales (Kwik Koffee). The site also consists of fuel bowsers covered by a canopy, car parking, footpaths, and sufficient sealed area to allow for traffic flow. Vehicle access and egress is via Koorden Place or the Ford Road Reserve, and there is a ‘left out’ only egress point onto Causeway Road. A location plan and aerial photograph are provided at Attachments A and B, respectively.

 

The subject land is located at a prominent entry point to the Busselton City Centre, and has a complex and somewhat difficult planning history. The original zoning under Town Planning Scheme No. 20 (TPS 20) was ‘Agriculture’. The zoning was amended to ‘Special Use – Service Station/Plant Nursery’ through Amendment 15 to TPS 20 (gazettal date 29 April 2003). The site is also subject to SP15 which includes provisions relating to structure planning, access, landscaping, and building design.

 

A Structure Plan (DGP 135) for the subject land was endorsed by the WAPC in 2003, and is provided at Attachment C. Amendment 99 (circa 2006) to TPS 20 attempted to change the zoning of the land to accommodate a motor vehicle sales and repairs land use, however that amendment was unsuccessful.

 

The current development approved for the site (DA16/0400), was determined by Council due to the nature of issues and level of community interest generated during advertising of the proposal. DA16/0400 was approved by Council at its meeting on 12 October 2016 (C1610/104). In 2017, DA16/0400 was subject to a modification request to the approved plans (DA16/0400.01). This request was approved and the original decision notice and plans amended. A copy of the modified development approval is provided at Attachment D.

 

Lot 13 Koorden Place, adjacent to the subject land, is zoned Rural. At its meeting of 22 August 2018 (C1808/166), Council approved a development application (DA18/0145) for a ‘Use Not Listed (4WD Test Track and Informal Parking Area) for the site.

 

The land use description approved for DA16/0400.01 is “Service Station (with ancillary wholesale fruit and vegetable, including small scale retail and drive-through coffee outlet)”. In effect, this means that all development other than the ‘Service Station’ that is located on the subject land must be ancillary or subsidiary to the ‘Service Station’ land use. Condition 6 and Advice Note 5 of DA16/0400.01 are relevant to this proposal:

 


 

Ongoing Conditions:

6.         The works undertaken to satisfy Conditions 3 and 4 shall be subsequently maintained for the life of the development and subject to the following conditions:

6.1      Sale of goods and services to the general public shall only occur in association with the service station, drive-through coffee facility and in the portion of the ‘FRUIT/VEGETABLE WHOLESALE’ building marked ‘INCIDENTAL RETAIL OUTLET’ on the approved plan.

6.2      Should, at any time, the service station cease to operate, then all of the other (ancillary) land-uses shall cease immediately, and none of the other land uses may commence operating until the service station has commenced operating.

6.3      Should the wholesale operations of the ‘FRUIT/VEGETABLE WHOLESALE’ building cease, the retail operations must also cease immediately.

 

Advice to Applicant:

5.         You are advised that, to clarify the land-use controls relating to the site and to allow the ancillary/subsidiary land-uses to operate independent of the predominant land-use in the future, the City envisages amending the town planning scheme in the future. Were that to occur, Conditions 5.1, 5.2 and/or 5.3 may be able to be removed subject to the receipt and assessment of an applicant [sic] to amend the planning approval. As part of the same or a different town planning scheme amendment, the City also envisages presenting for the Council’s consideration proposals for the better management and control of non-agricultural land-uses on Agricultural zoned and other land adjoining the City’s major road network, consistent with the adopted strategic planning direction which is generally opposed to unplanned commercialization of land-use along that major road network.

Condition 6 mandates that all land uses on the site other than the ‘Service Station’ are dependent on the operation of the ‘Service Station’ land use. It restricts how the associated sale of goods and services, and the retail component of the fruit/vegetable wholesale operation, shall occur.

 

The first half of Advice Note 5 relates to Condition 6 and is relevant to this Amendment. The second half of the Advice Note does not relate to Condition 6 or the subject land, and will not be discussed any further in relation to this proposal (it is now envisaged this will be addressed in the new town planning scheme, which is in development).

OFFICER COMMENT

As a highly prominent gateway site to Busselton, the landscaping and visual amenity of this and other sites adjacent to major access routes is critical. Unlike other regional cities, the entry to Busselton is composed of a visually pleasant green corridor and low-scale residential development. This is in contrast to the types of commercial development, dominated by car parking and signage that often line major access routes on the outskirts of regional towns and cities. The maintenance of existing visual amenity when entering Busselton is an important consideration in this proposal.

 


 

The purpose of this proposal is not to introduce any development or land use other than what is already approved and/or operating on the subject land. The purpose is to act upon Advice Note 5, which was included when development approval was issued in 2016/17. If supported, the Amendment will better define and clarify the land use controls that have been approved and are currently operational. Key elements include matters relating to existing site development, being land uses and floor areas. Such detailed controls are not usually desirable, however, in this instance they are an appropriate response to the unique history of the site.

 

These matters are discussed below under appropriate sub-headings.

 

Land Uses and Gross Floor Area (GFA)

The Amendment will serve to enable the ancillary land uses (‘Wholesale/Storage’, ‘Shop, ‘Restaurant/Café’, and ‘Takeaway Food Outlet’) to operate independently of the predominant land use (‘Service Station’), and thereby allow each of those land uses greater surety and flexibility.

 

The current approved land uses (predominant and ancillary) and their respective GFAs are as follows:

 

CURRENT LAND USE

GFA

COMMENTS

Service Station

[Puma]

400m²

Approx. 50% of the Service Station floor area is allocated to an in-house restaurant which is typical in the design of a service station. The tenant, Puma, does not utilise the space and therefore it is currently classed as vacant floor space.

Garden Centre

-

No current development.

Ancillary wholesale fruit and vegetable, including small scale retail

[Western Growers]

1,100m²

This building is currently divided into three separate areas including 300m² for loading and unloading, 500m² for wholesale activity, and 300m² for small scale retail.

Drive-through coffee outlet [Kwik Koffee]

75m²

Used primarily for drive-through sales with a small outdoor area for seated consumption of beverages.

 

The proposal includes a change to Schedule 5 ‘Special Uses’ (SU17) to specify the following land uses, which are consistent with land uses in ‘Table 1 – Zoning Table’ of the Scheme, together with their respective GFA allocations:

 

CURRENT LAND USE

PROPOSED LAND USE

PROPOSED GFA

COMMENTS

Service Station

[Puma]

Service Station

400m² (no change to existing)

Actual floor area currently utilised by the tenant is approx. 50% of the GFA.

Restaurant/Cafe

Allows for the current vacant area of the Service Station to be occupied by a Restaurant/Café (different tenant) and operated independently from the Service Station.

Ancillary wholesale fruit and vegetable, including small scale retail

[Western Growers]

Warehouse/Storage

600m²

To accommodate the existing wholesale fruit and vegetable operation, including 300m² for loading/unloading and 300m² for wholesale activity (the proposed 300m² for wholesale activity is reduced from the current GFA of 500m²).

 

Shop

500m²

Includes a 200m² increase of the 300m² currently approved for ‘retail’ activity.

Drive-through coffee outlet

[Kwik Koffee]

Takeaway Food Outlet

100m²

Allows for a minor increase of 25m² GFA.

Garden Centre

Garden Centre

-

This land use has been retained as an adaptive reuse option should any of the existing businesses become non-operational.

 

Currently, the combined total GFA across all development on the subject site is 1,575m². The proposed change to SU17 includes a condition that allows for a total GFA across the site of 1,700m².  This represents an increase of approximately 7.5%, and allows for a limited degree of additional flexibility (e.g. minor alterations, if necessary, to existing buildings).

 

In addition to the capping of GFA across the site, the proposed change to SU17 includes two further conditions relating to the GFA of specified land uses.

 

The first condition is an adjustment of GFA within the internal area of the established Western Growers building, involving a reduction of the wholesale area from 500m² to 300m², and an increase in retail area from 300m² to 500m². This adjustment is considered to be relatively minor and is proposed as a result of operational planning for the business, which has now been operating since 2018. This adjustment in floor area will not impact any other site requirements that would normally be assessed at development application stage, for example, traffic impact and car parking.

 

The second condition is to allow the ‘Takeaway Food Outlet’, which is currently 75m² in area, to increase to 100m². This allows for minor expansion of the existing business while also limiting the ability for any substantial expansion.

 

The limited expansion of total GFA across the site for land uses, as described above, is consolidated by an additional condition proposed to be included in the amendment of SU17 which expressly prohibits any development that exceeds these specified GFAs.

 

Maintaining Orderly and Proper Planning - SP15 & DGP 135

The proposed Amendment includes a change to Schedule 3 ‘Special Provisions’ of the Scheme by deleting Special Provision 15 (SP15). SP15 relates only to the subject land and includes a number of provisions in regard to structure planning, access, landscaping, and building design. Provision 1 of SP15 states:

1.         Development of the land shall generally be in accordance with a Structure Plan adopted by the local government and endorsed by the Western Australian Planning Commission.

 

A Structure Plan (DGP 135) was prepared for the subject land and endorsed by the WAPC in 2003. DGP 135 includes development guide plan notes that have the same intent as, and expand upon, the provisions of SP15. Furthermore, the notes address a number of other planning considerations such as (but not limited to) car parking, provision of services, and drainage.

 

The original provisions of SP15 and DGP 135 were considered during the assessment of the existing development on the site (DA16/0400) and are found to be somewhat redundant given that development on the subject land has now occurred in general accordance with DGP 135.

 

Nonetheless, as discussed above, the site is located at a prominent entry point to Busselton, and guidance for any future development will assist in maintaining pleasant visual amenity and orderly and proper planning. Whilst it is proposed that SP15 be deleted, conditions relating to setbacks and building design have been included in the proposed change to SU17.

Statutory Environment

The key statutory documents relevant to this proposal include the Planning and Development Act 2005, the Planning and Development (Local Planning Schemes) Regulations 2015, and the relevant objectives and provisions of the City of Busselton Local Planning Scheme No. 21. Each is discussed below under appropriate subheadings.

 

Planning and Development Act 2005

The Planning and Development Act 2005 outlines the relevant considerations when preparing and amending local planning schemes. The relevant provisions of the Act have been taken into account in preparing and processing this Amendment.

 

Planning and Development (Local Planning Schemes) Regulations 2015

The Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), which came into operational effect on 19 October 2015, identify three different levels of amendments – basic, standard and complex. The resolution of the local government is to specify the level of the amendment and provide an explanation justifying this choice.  This Amendment is considered to be a ‘standard’ amendment.

 

Local Planning Scheme No. 21

The subject land is zoned ‘Special Use – Service Station/Plant Nursery’, and is identified in Schedule 5 ‘Special Uses’ as ‘Service Station/Plant Nursery’ (No. 17). The objectives of the ‘Special Use’ zone are as follows:

a.         To facilitate special categories of land uses, which do not sit comfortably within any other zone.

b.         To enable the local government to impose specific conditions associated with the special use.

The subject land is also subject to the ‘Special Provision’ Special Control Area (SP15). The following ‘Special Provisions’ apply:

1.                   Development of the land shall generally be in accordance with a Structure Plan adopted by the local government and endorsed by the Western Australian Planning Commission.

2.                   Access along Causeway Road is restricted to “left out” only.

3.                   Road widening of Causeway Road will be provided at the subdivision stage to the satisfaction of Main Roads WA.

4.                   Proposed landscaping areas shown on the Structure Plan will be subject to detailed design and approval by Main Roads WA and the local government prior to implementation at the subdivision and development stage and shall address the following to the local government’s satisfaction:

a)        effective screening of buildings and fences;

b)        planting density and height;

c)         the function of Causeway Road as an entry corridor to Busselton; and

d)        sight distances.

 

5.         The architectural design and proposed colour schemes associated with any development on the land will be subject to approval by the local government and will need to address the following matters to the local government’s satisfaction:

a)        The function of Causeway Road as an entry corridor to Busselton;

b)        Landscape and streetscape impacts;

c)         Setbacks to road frontages; and

d)        Building height.

Clause 5.14 Designated Bushfire Prone Areas is also relevant to this proposal as follows:

5.14.1       A Designated Bushfire Prone Area is an area designated as Bush Fire Prone on the Bush Fire Hazard Assessment maps. Dwelling construction within an identified area will be subject to the relevant bushfire prone area building requirements pursuant to the Building Code of Australia, Australian Standard 3959 – 2009 and otherwise as set out pursuant to the Scheme.

 

The proposal is considered to be consistent with the relevant objectives and provisions relating to the zoning of the subject land under the Scheme.

Relevant Plans and Policies

The key policy documents relevant to this proposal are State Planning Policy 3.7: Planning in Bushfire Prone Areas, and the Local Commercial Planning Strategy. Each is discussed below under appropriate subheadings.

 

State Planning Policy 3.7 (SPP 3.7)

The intent of SPP 3.7 is to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure. SPP 3.7 directs how land use should address bushfire risk management, and applies to all land which has been designated as bushfire prone by the Office of Bushfire Risk Management.

 

The subject land has been designated as a Bushfire Prone Area since 2019; this designation was not applied at the time of development approval in 2016, nor at the time of physical development.

 

Planning Bulletin 111/2016 provides a basis for exemptions from the requirements of SPP 3.7 and the deemed provisions (of the Regulations), and states that the deemed provisions should be applied pragmatically by the decision maker.

 

Taking a pragmatic approach, therefore, a Level 3 bushfire consultant was commissioned by the proponent to assess the matter. The professional advice provided was that a retrospective bushfire risk assessment would not provide any increase in safety to employees or visitors and would not change the overall bushfire exposure risk compared to the 2016 status, when development approval was issued. As a result, the provisions of SPP 3.7 and associated guidelines have not been applied to this proposal.

 


 

Local Planning Strategy (LPS)

The LPS establishes the following strategies to guide the planning of the District which are relevant to consideration of this proposal:

2 p)     Do not support:

i)          unplanned new, or expansion of, existing activity centres not identified in the established activity centre framework:

ii)         industrial/service commercial areas not identified in the established activity centre and industrial/service commercial frameworks:

iii)        significant shop retail or office uses locating outside activity centres:

iv)        retail activity, including bulky goods retail, outside activity centres unless there is a clear and compelling argument to do so…

5 j)      Protect and enhance the visual character of the District by avoiding the further commercialisation of land-use and development visible from… regional roads, strategic local roads and travel route corridors…as well as providing, wherever possible and consistent with maintaining landscape and visual character values, screening landscaped buffers where development is being undertaken in locations visible from these sites, roads and travel routes.

 

Local Commercial Planning Strategy (LCPS)

In order to prevent ad-hoc commercial ribbon development along major roads, the LCPS prevents further commercial development along Causeway Road, other than that accommodated by existing zonings or specifically supported by the Strategy. Recommendation 9 applies:

9)         Further service commercial development along major roads, including Busselton Bypass, Bussell Highway and Causeway Road, other than that accommodated by existing zonings and/or specifically supported by the Strategy is not supported.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

If the Council resolves to initiate the proposed Amendment, the relevant documentation would be referred to the Environmental Protection Authority (EPA) for consideration of the need for formal assessment under Part IV of the Environmental Protection Act 1986.  Should the EPA resolve that the Amendment does not require formal assessment, then the document will be advertised for 42 days in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015.

Risk Assessment

An assessment of the potential implications of implementing the officer's recommendation has been undertaken using the City's risk assessment framework, with the intention being to identify risks which, following implementation of controls, are identified as medium or greater. No risks of a medium or greater level have been identified.


 

Options

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

1.         Modify the Amendment before advertising.

2.         Decline the initiation of the Amendment.

 

The officer assessment has not revealed any substantive issue or reasonable grounds that would support either of the above options.

CONCLUSION

The Amendment provides for the clarification of land uses on the subject land that have already been approved and are currently operational, and allows for additional surety, and limited flexibility, in the development of those land uses. City officers recommend that the Council supports the initiation of the Amendment for public advertising.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The implementation of the officer recommendation will include advising the applicant of the Council resolution and referring the Amendment to the Environmental Protection Authority, which will occur within one month of the date of the Council decision.


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13.2

Attachment a

Location Plan

 


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13.2

Attachment b

Aerial Photograph

 


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13.2

Attachment c

Development Guide Plan (DGP 135)

 


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13.2

Attachment d

Development Approval (DA16/0400.01)

 














 


Council                                                                                      45                                                             10 February 2021

15.1           PROPOSED AUSTRALIAN UNDERWATER DISCOVERY CENTRE

STRATEGIC GOAL

4. ECONOMY Diverse, resilient, prosperous

STRATEGIC OBJECTIVE

4.3 Events and unique tourism experiences that attract visitors and investment.

SUBJECT INDEX

Busselton Jetty

BUSINESS UNIT

Community and Commercial Services

REPORTING OFFICER

Director, Community and Commercial Services - Naomi Searle

AUTHORISING OFFICER

Director, Community and Commercial Services - Naomi Searle

NATURE OF DECISION

Noting: The item is simply for information purposes and noting

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   AUDC Concept Designs

Attachment b    Community Consultation Outcome - AUDC Concept Designs  

 

Council Decision and Officer Recommendation

C2102/018              Moved Councillor P Carter, seconded Councillor P Cronin

 

That the Council:

1.         Acknowledges the community consultation undertaken by Busselton Jetty Incorporated (BJI) as required by resolution C2007/078 as part of the Australian Underwater Discovery Centre (AUDC) project.

2.         Notes the preferred concept design of the AUDC is the Cetacean concept.

3.         Notes the preferred concept design is at preliminary design stage only and will be further refined at detailed design stage.

4.         Notes that a further report will be presented to Council as required by resolution C1906/118 when BJI is in the position to confirm the project scope, budget, funding contributions and more certainty on the operating financial projections.

5.         Requests BJI engage an independent tourism specialist to undertake a peer review of the AUDC business case and financial projections, including the consideration of the funding of ongoing asset management requirements of the new structure.

CARRIED 9/0

En Bloc

 

EXECUTIVE SUMMARY

Busselton Jetty Inc. (BJI) has been granted $13 million from the Federal Government’s Regional Growth Fund as partial funding for the design and construction of a new state-of-the-art underwater observatory, proposed as the Australian Underwater Discovery Centre (Project), as a key strategy for increasing revenue from Busselton Jetty (Jetty) operations and ensuring sustainability of the Jetty for future generations. 

 

As required by resolution C2007/078, BJI have undertaken community consultation to identify a preferred concept design for the AUDC. This report provides an overview of the consultation.

 


 

BACKGROUND

Busselton Jetty Inc, formerly known as Busselton Jetty Environment and Conservation Association Incorporated (BJECA), is a Busselton-based voluntary incorporated association with, among other things, the following objectives:

·        Raising funds to protect and preserve the Busselton Jetty and the environment around it; and

·        Being resourceful, financially viable and economically sustainable to ensure it meets its obligation to provide funds for the preservation and maintenance of the Busselton Jetty.

 

In 2008, the City obtained grant funding of $24 million from the South West Development Commission (SWDC) for purposes of refurbishing the Busselton Jetty. On 30 October 2009, in accordance with the grant agreement, the City and BJI entered into a licence agreement, which has since been amended (Busselton Jetty Licence). In terms of the Busselton Jetty Licence, BJI was granted the right to conduct certain commercial activities at/on the Busselton Jetty in consideration for payment of an annual licence fee, which includes collecting entrance fees from persons entering the Busselton Jetty from its land side and operating the Busselton Jetty train, the Underwater Observatory (UWO) towards the northern end of the Busselton Jetty and the Interpretive Centre. These licensed activities constitute BJI’s main business and main source of revenue.

 

According to BJI, the Busselton Jetty is a highly successful tourist attraction. The UWO is the main attraction on the Busselton Jetty. Tours for visiting the UWO (most of which include a trip on the Busselton Jetty train) is the activity that generates the most income. During peak seasons, visitors are turned away from the current UWO tours due to the building’s size constraints. Despite this, and despite increasing operating hours of the UWO in summer to increase revenue, a feasibility study commissioned by BJI in 2016 found that it is imperative to implement new income generating activities at and on the Busselton Jetty in order to ensure its financial sustainability over the long term.

 

BJI has since identified an opportunity to develop a new state-of-the-art underwater observatory, known as the Australian Underwater Discovery Centre (AUDC) with the aim of:

·        Increasing the income stream from activities at/on the Busselton Jetty and ensuring sustainability of the Busselton Jetty for future generations;

·        Increasing Busselton and the region’s tourism appeal;

·        Supporting domestic air services to the Busselton Margaret River Airport;

·        Supporting significant investments in a new family restaurant/microbrewery and hotel on the Busselton foreshore; and

·        Creating new local jobs (directly and indirectly).

 

Based on this, BJI prepared a business case to seek funding for the Project. In April 2019, BJI was invited to submit an application to the Federal Government’s Regional Growth Fund for the design and construction of the AUDC and was subsequently granted $13M. In May 2019, BJI presented a proposal to the City for a self-supporting loan request of $4M which was to support a BJI contribution of $3M and State Government funding proposal of $10M, bringing the total proposed budget to $30M. 

 


 

In consideration of this, Council resolved (C1906/118) the following:

That the Council:

1.         Expresses its in-principle support for Busselton Jetty Inc.’s (BJI) proposal for the Australian Underwater Discovery Centre as detailed in BJI’s submission of 24 June 2019 and referred to in this report (Project).

2.         Expresses its in-principle support, subject to resolution (3) and (4) to facilitate up to a $4 million self-supporting loan for a term of ten years for BJI from WA Treasury for partial funding of the Project.

3.         Resolution (2) is subject to:

a.        BJI submitting with the City for review and Council approval a detailed business case and project plan demonstrating the viability and sustainability of the project and BJI’s ability to service the loan mentioned in Resolution (2);

b.        BJI providing confirmation to the City’s satisfaction that funding for the balance of the full Project scope and delivery and all other associated Project costs have been secured without recourse to any further City contribution, including appropriate contingency funding;

c.         BJI providing confirmation to the City’s satisfaction that, in relation to the Project, all contractual requirements under the Busselton Jetty Licence agreement between the City and BJI have been or will be complied with;

d.        BJI providing confirmation to the City’s satisfaction that, in relation to the Project, all governmental authorisations, approvals and consents have been or will be obtained;

4.         Requests the Chief Executive Officer to present Council with a detailed report on the Project as soon as practicable after which Council will make a final resolution in relation to approval of the Project and provision of the $4 million self-supporting loan referred to in Resolution (2).

 

BJI has advised that State Government funding is yet to be confirmed, however on 21 January 2021 the McGowan Government announced a commitment of $9.5M towards the Project should the Labor Government be re-elected. The Liberal party has also committed $10M should they be elected.  Therefore, as there is still uncertainty surrounding the Project in terms of the final scope and budget, parts 3 and 4 of the above resolution are yet to progress.

 

To meet the requirements of the Federal Government funding agreement, BJI have been progressing the Project. At the Ordinary Meeting held on 29 July 2020, Council considered an expression of interest (EoI) process BJI undertook for the design and construction of the AUDC and resolved (C2007/078) the following:

That the Council:

1.         Notes the outcome of Busselton Jetty Inc.’s (BJI) Expression of Interest process for the design and construction of the Australian Underwater Discovery Centre as detailed in Attachment B.

2.         Requests BJI to seek community feedback in relation to the preferred concept design(s) and present the findings to Council.

3.         Notes that a further report will be presented to Council as required by resolution C1906/118 when BJI is in the position to confirm the project scope, budget, funding contributions and more certainty on the operating financial projections.

 


 

OFFICER COMMENT

In late 2020, BJI presented Council with three design concepts for the AUDC (see Attachment A) which formed the basis of community consultation as required by Council resolution C2007/078. The consultation comprised online survey and poll via social media, and two face-to-face community sessions. The consultation results and summary is provided as Attachment B.

 

From the three concepts designs provided, the Cetacean was identified as the preferred design. As a result, BJI have requested Council’s endorsement of the Cetacean concept to enable BJI to proceed to 25% detailed design.

 

BJI have confirmed they are proceeding with the design of the AUDC as part of their contribution towards the project and that this would be undertaken at their own risk and cost. As such, BJI has engaged contractor Subcon to undertake the design and construction of the Project.

 

While Council may consider a preferred concept, Council’s endorsement of the Project remains subject to Council’s approval of a detailed business case and project plan as per resolution C1906/118.  Further consideration of the business case is a detailed analysis of the financial operating projections, as this will have an impact on the City’s ongoing financial commitment to the Jetty, and ultimately financial risk exposure. It is therefore recommended that BJI engage an independent specialist tourism consultant to review the financial operating projections and that the report be presented to Council as part of its consideration towards the Project.  Council may consider part funding this to maintain its independence.

 

In addition to consideration of Council resolution C1906/118, section 15 of the licence agreement between the City and BJI requires:

a)             The Licensee must not, and must not permit, any structural alterations to, on or that relies on a connection to, the Jetty without the prior approval of the City, the Minister and the Department.

b)             Any approval given under this clause 15 may be subject to conditions including conditions relevant to ensuring the structural integrity of, and continued maintenance of the condition of the Jetty.

c)              When seeking an approval under this clause 15 the Licensee must submit the following information:

(i)        detailed plans of, and reasons for, the proposed additions or alterations;

(ii)       a maintenance plan for the ongoing maintenance of any new structural addition;

(iii)      details of how the Licensee will meet the maintenance obligations of any new structural additions.

(d)       The City may request other information from the Licensee before making a decision as to whether to give the approval sought and will consult with relevant Governmental Agencies or person with relevant expertise in coming to the decision.

The financial model originally provided by BJI projects an increase in revenue as a result of the AUDC operations and therefore an increase in the annual licence fee payable to the City.  The licence fee however remains unchanged and assumes that 25% of gross revenue (plus certain exclusions) will cover the ongoing asset management requirements of the entire jetty, including UWO, Interpretive Centre and AUDC.  The financial model does not consider additional asset management costs associated with the AUDC, and without detailed designs in place, asset management requirements and associated costs remain unknown.  Without this critical information, Officers have concerns with the potential financial risk the AUDC exposes to the City.


 

The detailed plans of the Project, including budget, scope, financial operating projections, and asset management requirements, and any financial request or obligation of the Council, is currently unknown. Therefore, it is not considered appropriate for Council to provide any endorsement of the Project beyond ‘in-principle’ support until it is in receipt of, and has considered, the above information.

Statutory Environment

The Busselton Jetty is located within Reserve 46715, which is Crown Land in a managed Reserve. BJI and the City have entered into the Busselton Jetty Licence, with the approval of both the Minister for Lands and the CEO of the Department of Transport (WA). The Busselton Jetty Licence is non-exclusive and does not create in or confer to BJI any tenancy or estate or interest in the Busselton Jetty or the Reserve.

 

The Busselton Jetty is managed and operated under a jetty licence granted to the City of Busselton by Department of Transport under the Section 7 of the Jetties Act 1926 (WA). In terms of this licence, the City:

·        May only use the Busselton Jetty for the use permitted under this licence (which includes operation of the existing UWO);

·        May appoint a person or entity to undertake its management obligations (or some of them) in respect to the Busselton Jetty;

·        Must maintain the Busselton Jetty in accordance with a pre-approved maintenance plan;

·        Must not, and must not permit, any structural changes or additions to the Busselton Jetty without the Department’s prior approval; and

·        When seeking approval for structural changes or additions, must submit detailed plans of and reasons for the proposed changes and a maintenance plan for ongoing maintenance of any new structural addition.

Relevant Plans and Policies

The Busselton Jetty 50-Year Maintenance Plan projects the maintenance and replacement schedule for the Jetty. The development of the AUDC aims to fulfil the asset management requirements and further develop the Jetty into a fully sustainable asset.

 

The proposed Project is consistent with the contents of the Busselton Foreshore Master Plan, where activation of the Busselton foreshore is identified as a key priority.

 

The City’s Corporate Business Plan identifies key City led or funded priority actions and projects over the ensuing four years. This project was initially identified as a medium-long term project however has since been incorporated into the City’s 2020-2024 Corporate Business Plan as a result of BJI securing Federal Government funding.

Financial Implications

In the form of in-kind support, significant City resources may need to be allocated to facilitate the Project. An internal project team has been established to negotiate, develop and execute licence agreements, review engineering designs and construction methodologies to ensure the structural integrity of the Jetty is not compromised, and ensure all approvals are obtained. This is expected to continue throughout the development and implementation the Project.

 


 

While BJI has previously requested a $4M self-supporting loan from the City to undertake the Project, Council’s consideration of the request is subject to resolution C1906/118 which requires a separate report to be presented to Council as per part 4 of the officer recommendation. However, at this point in time, the total project budget is unknown and through discussions with BJI the Project may have a shortfall of $5M; it is yet to be confirmed how these funds will be derived. For information, as at 28 January 2021, the Department of Treasury advised that the current interest rate for a loan over 10 years is 0.98% plus a loan guarantee level of 0.7% per annum and 1.86% over 20 years plus a loan guarantee level of 0.7% per annum.

Stakeholder Consultation

BJI have undertaken community consultation as outlined in Attachment A to determine the preferred concept design for the Project.

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.

 

As mentioned within the Financial Implications, the consideration of a $4M self-supporting loan would need to be taken into consideration as it would impact on the City’s reportable Debt Ratio. However, as a follow up report will be presented to Council should this be progressed, this will be further detailed in the appropriate report to Council.

Options

As an alternative to the proposed recommendation the Council could:

1.         Choose to nominate an alternative preferred concept design.

2.         Choose not to support any of the concept designs presented.

CONCLUSION

While Council has previously provided its ‘in-principle’ support for the AUDC project, its commitment and endorsement of the Project remains subject to the requirements of the Busselton Jetty Licence and Council resolution C1906/118. As such, and noting that BJI are proceeding with the Project at their own cost and risk, it is recommended that Council acknowledges the outcome of the community consultation with the Cetacean concept design being the preferred concept.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

Should the officer recommendation be adopted, BJI will be informed immediately.


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15.1

Attachment a

AUDC Concept Designs

 























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15.1

Attachment b

Community Consultation Outcome - AUDC Concept Designs

 




 

 


Council                                                                                      72                                                             10 February 2021

17.1           COUNCILLORS' INFORMATION BULLETIN

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

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

SUBJECT INDEX

Councillors' Information Bulletin

BUSINESS UNIT

Executive Services

REPORTING OFFICER

Reporting Officers - Various

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

Noting: The item is simply for information purposes and noting

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Current State Administrative Tribunal Reviews  

 

Council Decision and Officer Recommendation

C2102/019              Moved Councillor P Carter, seconded Councillor P Cronin

 

That the items from the Councillors’ Information Bulletin be noted:

17.1.1       State Administrative Tribunal Reviews 

CARRIED 9/0

En Bloc

 

EXECUTIVE SUMMARY

This report provides an overview of a range of information that is considered appropriate to be formally presented to the Council for its receipt and noting. The information is provided in order to ensure that each Councillor, and the Council, is being kept fully informed, while also acknowledging that these are matters that will also be of interest to the community.

 

Any matter that is raised in this report as a result of incoming correspondence is to be dealt with as normal business correspondence, but is presented in this bulletin for the information of the Council and the community.

 

INFORMATION BULLETIN

17.1.1       State Administrative Tribunal Reviews 

 

A summary of the current State Administrative Tribunal reviews is provided at Attachment A.

 


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17.1

Attachment a

Current State Administrative Tribunal Reviews

 



Council                                                                                      96                                                             10 February 2021

ITEMS FOR DEBATE

13.1           APPLICATION FOR DEVELOPMENT APPROVAL (DA 17/0866) - PROPOSED INDUSTRY - EXTRACTIVE (GRAVEL) - LOT 2 NUTTMAN ROAD AND LOT 3 CHAPMAN HILL EAST ROAD, CHAPMAN HILL

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

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

SUBJECT INDEX

Development / Planning Applications

BUSINESS UNIT

Development Services

REPORTING OFFICER

Statutory Planning Coordinator - Joanna Wilson

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

NATURE OF DECISION

Regulatory: To determine an application/matter that directly affects a person’s right and interests e.g. development applications, applications for other permits/licences, and other decisions that may be reviewable by the State Administrative Tribunal

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Location Plan

Attachment b    Site and Development Plans

Attachment c    Application Material

Attachment d   Agency Responses

Attachment e    DWER Preliminary Assessment Report for Vegetation Removal

Attachment f    Response from Federal Department of Environment and Energy

Attachment g   Plan of Noise Sensitive Premises

Attachment h   Schedule of Submissions

Attachment i     Traffic Consultant Advice (initially related to an earlier application)

Attachment j     Updated Noise Impact Assessment  

 

Officers foreshadowed an amended recommendation prior to the meeting. In accordance with the City’s Standing Orders Local Law 2018, the amended recommendation was taken to be an alternative motion and moved prior to the Officer Recommendation, which was:

 

OFFICER RECOMMENDATION

That the Council determines:

A.        That application DA17/0866 submitted for development of Industry – Extractive (Gravel) at Lot 2 Nuttman Road and Lot 3 Chapman Hill East Road is considered by the Council to be generally consistent with Local Planning Scheme No. 21 and the objectives and policies of the zone within which it is located.

 

B.         That Development Approval is issued for the proposal referred to in (A) above subject to the  following conditions –

 

General Conditions:

1.         The development hereby approved is permitted to operate for five years from the date of this Decision Notice or until 170,000 cubic metres volume of material has been extracted, whichever is sooner. The site shall be fully rehabilitated in accordance with an approved Rehabilitation Management Plan (as approved under condition 3.2) by the expiry date of this development approval.

 

2.          The owner must ensure that the development is undertaken in accordance with the approved plans and the details contained within the Site and Development Plans and Application Material (Attachment B and C), other than as modified by the conditions below.

 

Prior to Commencement of Any WORKS Conditions:

3.         The owner must ensure that no material is extracted from the site or any other works undertaken until the following plans/details have been submitted to, and approved by, the City: 

 

3.1       Details of a Tree Protection Plan providing for temporary demarcation barriers to be erected to 15m from the crown drip zone of adjacent trees to protect the tree and root system from accidental machinery damage.

 

3.2       A Rehabilitation Plan, to be prepared by a suitably qualified natural revegetation practitioner, incorporating like for like revegetation for the area cleared and to be revegetated with native species to provide habitat for black cockatoos and shall include details of the following:

a)        Description of the finished profile of the soils of the extraction area post extraction;

b)        Final ground contours, finished profile with embankments not to be steeper than 1 in 5;

c)         Proposed vegetation assemblage for the area post extraction, given the soil profile, topography and a description of the ecological values and functions that are expected to be returned to the revegetation offset site;

d)        Staging of revegetation process;

e)        Ripping and/or other treatments to the base of the pit;

f)         Spreading of stockpiled topsoil;

g)        Re-use of any stockpiled vegetation;

h)        Planting methodology, native species list (mix of trees, shrubs and ground covers), planting densities;

i)          Criteria for assessment of whether the revegetation has been satisfactorily completed; and

j)         Weed management plan.

 

3.4      A revised Water Management Plan, including additional details regarding stormwater retention measures to prevent the flow of stormwater into neighbouring properties.

 

3.5      Details of warning signage to be erected along the transport route. Signage shall include signs on both approaches to the pit along Nuttman Road 100m from the access.

 

3.6       A Dust Management Plan, including details validating the water supply available for dust suppression to implement the approved and procedures associated with management of dust on the unsealed section of the haul route.

 

3.7       Details for the upgrading of the existing crossover to ensure that adequate sightlines are achieved.

 

 

3.8       Plans for the widening of Nuttman Road to:

a)        a minimum unsealed carriageway width of 7.0 metres from the crossover to the subject site north to the sealed section of Nuttman Road; and

b)        Widening of the sealed section of Nuttman Road to 6.2m with 0.80m gravel shoulders (7m formation).

 

(such plans shall specify the width, alignment, gradient and type of construction proposed for the upgrades, including all relevant horizontal cross-sections and longitudinal-sections showing existing and proposed levels, together with details of vegetation, pinch points and culverts and where necessary how such culverts will be upgraded).

 

3.9       A 3D Digital Terrain Model indicating the following in Australian Height Datum:

a)        Existing ground levels;

b)        Maximum extraction depths; and

c)         Minimum final ground levels after rehabilitation.

 

3.10    The following bonds being provided to the City:

a)        A road maintenance bond of $20,000 (being an unconditional bank guarantee) to ensure that the surrounding road network is maintained to the satisfaction of the City for the term of the extractive industry. Those portions of public roads affected by the activities related to the approval shall be maintained to a standard acceptable to the City at the cost of the owner. The City may use the bond to maintain the affected public roads as it deems necessary.

b)        A dust bond of $6,000, which shall be held against satisfactory compliance with the Dust Management Plan.

c)         A rehabilitation bond of $30,000, which shall be held against satisfactory compliance with Condition 3.2 of this approval.

d)        Further to conditions 3.10 (a)-(c) (Bond conditions), the bonds are to be accompanied by an executed legal agreement with the City at the full cost of the owner. The legal agreement shall include:

i.          The ability for the City to be able to use the bond, or part of the bond as appropriate, and any costs to the City including administrative costs of completing or rectifying any outstanding works on site in accordance with  the conditions of this development approval and any further costs;

ii.         Written authorisation from the owner of the land that the City may enter the site at any time and permit the City to complete or rectify any outstanding work to the satisfaction of the City;

iii.        If at any time part of the bond is called upon, used or applied by the City in accordance with the legal agreement, the restoration of the bond to the full amount required by these conditions; and

iv.        The ability to lodge a caveat over the site to secure the City’s interest.

 

Prior to COMMENCEMENT OF EXTRACTION CONDITIONS:

4.          The owner must ensure that no material is extracted until information setting out that and how the plans and details required by Conditions 2 and 3 have been implemented, has been provided to the satisfaction of the City, and the City has subsequently issued a ‘Permit to Commence’, confirming that extraction can commence.

Prior to COMMENCEMENT OF EXTRACTION, OTHER THAN EXTRACTION FOR UPGRADES TO NUTTMAN ROAD:

5.         Notwithstanding Condition 4 above, gravel can be extracted from and crushed on the site for the purpose of upgrading Nuttman Road and/or the crossover, in the following circumstances:

 

5.1       Where all plans, details and bonds required by Condition 3 have been provided to and approved by the City, and implemented to the satisfaction of the City; and

 

5.2       With the prior written approval of the City.

 

OnGoing Conditions:

6.         The owner must ensure that the plans, details and works undertaken to satisfy Conditions 1, 2, 3, 4 and 5 are subsequently implemented and maintained for the life of the development and, in addition, the following conditions must be complied with:

 

6.1       The development hereby approved shall be limited to: the excavation or movement of gravel from its natural state on the site; screening of material; crushing of gravel; transportation of gravel within or off the site; associated drainage works and access ways; and rehabilitation works.  At no time shall any blasting works be carried out.

 

6.2       Operating hours, including the transportation of materials, shall be restricted to the hours between: 7.00am and 6.00pm Mondays to Fridays; and 7.00am and 1.00pm Saturdays for rehabilitation works only; and at no time on Sundays or public holidays.

 

6.3       Trucks going to and from the development are not to operate on Monday to Friday between the hours of 7.30am and 8.40am and between 3.20pm and 4.20pm on any given school day on a school bus route, or between other times as agreed in writing between the applicant and the local government.

 

6.4       The designated haulage route is to the Busselton Bypass, northwards along Nuttman Road to Walsall Road and then north along Chapman Hill Road. No other routes may be used, until trucks have reached the Busselton Bypass.

 

6.5       A maximum number of 50 truck movements (i.e. 25 trucks entering and 25 trucks exiting the site) shall be permitted on any operating day (i.e. Sundays and public holidays are not operating days). No truck movements are permitted on any other day.

 

6.6       Notwithstanding Conditions 6.4 and 6.5 above, should more than 50 truck movements per day and/or an alternative haulage route be proposed, a Traffic Management Plan is to be submitted to and approved in writing by the City; with the Plan being submitted to the City at least 7 working days prior to any haulage not consistent with Conditions 6.5 or 6.6 occurring.

 

Note: The City will only approve additional movements or alternate routes where it is determined that an acceptable Traffic Management Plan has been provided. The City will not approve additional truck movements and/or an alternative haulage route for more than 20 working days in any calendar year. Any additional days will require a Modification to Development Approval to be submitted to, and approved by, the City.

 

 

6.7       No more than 2 hectares shall be worked at any one time; this area shall then be rehabilitated in accordance with the approved details pursuant to Condition 3.2 concurrently with the extraction of the following 2 hectare area.

 

6.8       The lowest level of excavation shall always be a minimum of 300mm above the maximum water table level and no dewatering works are to be undertaken.

 

6.9       Further to condition 6.8 (level of extraction), the final land surface (after rehabilitation for pasture) should be 500mm above the maximum seasonal groundwater.

 

6.10    The approved Rehabilitation Plan shall be implemented and carried out in accordance with the approved details, including any notes placed thereon in red by the City.

 

6.11    The owner must submit to the City annually within three months of every anniversary of the issue of the Permit to Commence certificate a written report detailing the following to the satisfaction of the City:

 

a)        A survey conducted by a licensed surveyor certifying:

i.          The extent/size and location of the area which has been extracted;

ii.         The extent/size and location of the area which has been rehabilitated;

iii.        The extent/size and location of the area which is currently under operation;

b)        Details as to which conditions of this development approval have been complied with and how the conditions have been complied with; and

 

c)         No extraction operations, including stockpiling or transportation of extracted material, are to be undertaken on the site at any time when an annual written report is due and has not been submitted to the City.

 

6.12    No development (including any extraction) may be carried out at any time when any bond that is required to be in force and effect under Condition 3.8 is not in full force and effect.

 


 

Council Decision and AMENDED Recommendation

C2102/020              Moved Councillor P Cronin, seconded Councillor P Carter

That the Council determines:

A.        That application DA 17/0866 submitted for development of Industry – Extractive (Gravel) at Lot 2 Nuttman Road and Lot 3 Chapman Hill East Road is considered by the Council to be generally consistent with Local Planning Scheme No. 21 and the objectives and policies of the zone within which it is located.

 

B.         That Development Approval is issued for the proposal referred to in (A) above subject to the  following conditions –

 

General Conditions:

1.         The development hereby approved is permitted to operate for five years from the date of this Decision Notice or until 170,000 cubic metres volume of material has been extracted, whichever is sooner. The site shall be fully rehabilitated in accordance with an approved Rehabilitation Management Plan (as approved under condition 3.2) by the expiry date of this development approval.

 

2.          The owner must ensure that the development is undertaken in accordance with the approved plans and the details contained within the Site and Development Plans and Application Material (Attachment B and C), other than as modified by the conditions below.

 

Prior to Commencement of Any WORKS Conditions:

3.         The owner must ensure that no material is extracted from the site or any other works undertaken until the following plans/details have been submitted to, and approved by, the City: 

 

3.1       Details of a Tree Protection Plan providing for temporary demarcation barriers to be erected to 15m from the crown drip zone of adjacent trees to protect the tree and root system from accidental machinery damage.

 

3.2       A Rehabilitation Plan, to be prepared by a suitably qualified natural revegetation practitioner, incorporating like for like revegetation for the area cleared and to be revegetated with native species to provide habitat for black cockatoos and shall include details of the following:

a)        Description of the finished profile of the soils of the extraction area post extraction;

b)        Final ground contours, finished profile with embankments not to be steeper than 1 in 5;

c)         Proposed vegetation assemblage for the area post extraction, given the soil profile, topography and a description of the ecological values and functions that are expected to be returned to the revegetation offset site;

d)        Staging of revegetation process;

e)        Ripping and/or other treatments to the base of the pit;

f)         Spreading of stockpiled topsoil;

g)        Re-use of any stockpiled vegetation;

 

h)        Planting methodology, native species list (mix of trees, shrubs and ground covers), planting densities;

i)         Criteria for assessment of whether the revegetation has been satisfactorily completed; and

j)         Weed management plan.

 

3.4      A revised Water Management Plan, including additional details regarding stormwater retention measures to prevent the flow of stormwater into neighbouring properties.

 

3.5      Details of warning signage to be erected along the transport route. Signage shall include signs on both approaches to the pit along Nuttman Road 100m from the access.

 

3.6       A Dust Management Plan, including details validating the water supply available for dust suppression to implement the approved and procedures associated with management of dust on the unsealed section of the haul route.

 

3.7       Details for the upgrading of the existing crossover to ensure that adequate sightlines are achieved.

 

3.8       Plans for the widening of Nuttman Road to:

a)        a minimum unsealed carriageway width of 7.0 metres from the crossover to the subject site north to the sealed section of Nuttman Road; and

b)        Widening of the sealed section of Nuttman Road to 6.2m with 0.80m gravel shoulders (7m formation).

 

(such plans shall specify the width, alignment, gradient and type of construction proposed for the upgrades, including all relevant horizontal cross-sections and longitudinal-sections showing existing and proposed levels, together with details of vegetation, pinch points and culverts and where necessary how such culverts will be upgraded).

 

3.9       A 3D Digital Terrain Model indicating the following in Australian Height Datum:

a)        Existing ground levels;

b)        Maximum extraction depths; and

c)         Minimum final ground levels after rehabilitation.

 

3.10    The following bonds being provided to the City:

a)        A road maintenance bond of $20,000 (being an unconditional bank guarantee) to ensure that the surrounding road network is maintained to the satisfaction of the City for the term of the extractive industry. Those portions of public roads affected by the activities related to the approval shall be maintained to a standard acceptable to the City at the cost of the owner. The City may use the bond to maintain the affected public roads as it deems necessary.

b)        A dust bond of $6,000, which shall be held against satisfactory compliance with the Dust Management Plan.

c)         A rehabilitation bond of $30,000, which shall be held against satisfactory compliance with Condition 3.2 of this approval.

d)        Further to conditions 3.10 (a)-(c) (bond conditions), the bonds are to be accompanied by an executed legal agreement with the City at the full cost of the owner. The legal agreement shall include:

i.          The ability for the City to be able to use the bond, or part of the bond as appropriate, and any costs to the City including administrative costs of completing or rectifying any outstanding works on site in accordance with  the conditions of this development approval and any further costs;

ii.         Written authorisation from the owner of the land that the City may enter the site at any time and permit the City to complete or rectify any outstanding work to the satisfaction of the City;

iii.       If at any time part of the bond is called upon, used or applied by the City in accordance with the legal agreement, the restoration of the bond to the full amount required by these conditions; and

iv.        The ability to lodge a caveat over the site to secure the City’s interest.

 

3.11   Details of a noise bund to the southern boundary to the satisfaction of the City, in addition to the noise reduction measures contained within the Approved Environmental Noise Assessment of Gravel Crushing by Acoustic Engineering Solutions dated 23 October 2020. 

 

Prior to COMMENCEMENT OF EXTRACTION CONDITIONS:

4.          The owner must ensure that no material is extracted until information setting out that and how the plans and details required by Conditions 2 and 3 have been implemented, has been provided to the satisfaction of the City, and the City has subsequently issued a ‘Permit to Commence’, confirming that extraction can commence.

 

Prior to COMMENCEMENT OF EXTRACTION, OTHER THAN EXTRACTION FOR UPGRADES TO NUTTMAN ROAD:

5.         Notwithstanding Condition 4 above, gravel can be extracted from and crushed on the site for the purpose of upgrading Nuttman Road and/or the crossover, in the following circumstances:

 

5.1       Where all plans, details and bonds required by Condition 3 have been provided to and approved by the City, and implemented to the satisfaction of the City; and

 

5.2       With the prior written approval of the City.

 

OnGoing Conditions:

6.         The owner must ensure that the plans, details and works undertaken to satisfy Conditions 1, 2, 3, 4 and 5 are subsequently implemented and maintained for the life of the development and, in addition, the following conditions must be complied with:

 

6.1       The development hereby approved shall be limited to: the excavation or movement of gravel from its natural state on the site; screening of material; crushing of gravel; transportation of gravel within or off the site; associated drainage works and access ways; and rehabilitation works.  At no time shall any blasting works be carried out.

 

 

 

 

6.2       Operating hours, including the transportation of materials, shall be restricted to the hours between: 7.00am and 6.00pm Mondays to Fridays; and 7.00am and 1.00pm Saturdays for rehabilitation works only; and at no time on Sundays or public holidays.

 

6.3       Trucks going to and from the development must not use the designated haulage route before 7.50am and between 4:00pm and 5:00pm on any given school day on a school bus route. Other times may be agreed in writing with the local government.

 

6.4       The designated haulage route is to the Busselton Bypass, northwards along Nuttman Road to Walsall Road and then north along Chapman Hill Road. No other routes may be used, until trucks have reached the Busselton Bypass.

 

6.5       A maximum number of 50 truck movements (i.e. 25 trucks entering and 25 trucks exiting the site) shall be permitted on any operating day (i.e. Sundays and public holidays are not operating days). No truck movements are permitted on any other day.

 

6.6       Notwithstanding Conditions 6.4 and 6.5 above, should more than 50 truck movements per day and/or an alternative haulage route be proposed, a Traffic Management Plan is to be submitted to and approved in writing by the City; with the Plan being submitted to the City at least 7 working days prior to any haulage not consistent with Conditions 6.5 or 6.6 occurring.

 

Note: The City will only approve additional movements or alternate routes where it is determined that an acceptable Traffic Management Plan has been provided. The City will not approve additional truck movements and/or an alternative haulage route for more than 20 working days in any calendar year. Any additional days will require a Modification to Development Approval to be submitted to, and approved by, the City.

 

6.7       No more than 2 hectares shall be worked at any one time; this area shall then be rehabilitated in accordance with the approved details pursuant to Condition 3.2 concurrently with the extraction of the following 2 hectare area.

 

6.8       The lowest level of excavation shall always be a minimum of 300mm above the maximum water table level and no dewatering works are to be undertaken.

 

6.9       Further to condition 6.8 (level of extraction), the final land surface (after rehabilitation for pasture) should be 500mm above the maximum seasonal groundwater.

 

6.10    The approved Rehabilitation Plan shall be implemented and carried out in accordance with the approved details, including any notes placed thereon in red by the City.

 

6.11    The owner must submit to the City annually within three months of every anniversary of the issue of the Permit to Commence certificate a written report detailing the following to the satisfaction of the City:

 

a)        A survey conducted by a licensed surveyor certifying:

i.          The extent/size and location of the area which has been extracted;

ii.         The extent/size and location of the area which has been rehabilitated;

iii.       The extent/size and location of the area which is currently under operation;

b)        Details as to which conditions of this development approval have been complied with and how the conditions have been complied with; and

 

c)         No extraction operations, including stockpiling or transportation of extracted material, are to be undertaken on the site at any time when an annual written report is due and has not been submitted to the City.

 

6.12    No development (including any extraction) may be carried out at any time when any bond that is required to be in force and effect under Condition 3.8 is not in full force and effect.

 

C.         Authorises the Chief Executive Officer to negotiate with the applicants and Mr Vernon Bussell of 225 Nuttman Road, Walsall, with a view to having the 6.2m seal extended approximately 160m further south along Nuttman Road to a point past the second dwelling on Lot 3883 Nuttman Road, with the cost to be shared between the applicants and Mr Bussell (and, potentially, with other landowners to further extend the seal, should those landowners be prepared to make contributions towards such work).

 

D.        Note that noise monitoring on the boundaries of the site is required by the Conditional Works Approval issued by DWER, and that either City or DWER may, on request, place noise monitoring equipment on adjoining or nearby sites.

CARRIED 9/0

Reasons:    In respect to proposed Condition 3.11, the noise monitoring does not show this as being necessary, but the applicant has agreed to undertake the additional bund on the southern boundary in addition to the proposed noise reduction measures contained within the Noise Assessment to provide greater comfort to the landowners to the south.

Condition 6.3 is proposed to be amended because a timetable for the school bus route for the year has been provided by Gannaways, who are the Public Transport Authority school bus contractor for the District.  The proposed times that the trucks must not operate have been amended to ensure trucks are not travelling along the designated haulage route when the school bus is within the vicinity. The condition also provides for changes without needing to amend the approval, should school bus times change during the life of the approval. Note that Mains Roads WA also has separate controls on Restricted Access Vehicles related to school bus movements.

Proposed point C would not be a valid or appropriate condition of approval, but both the applicant and Mr Bussell have indicated a willingness to contribute to extending the sealed portion of the road. It is considered that this is a positive outcome and point C reflects that, and also recognises that contributions from other owners may allow the sealed section of the road to be further extended.

Proposed point D notes that DWER will issue a Conditional Works Approval that will impose conditions on the applicant to undertake noise monitoring on the boundaries of the lot, the results of which will be required to be analysed by a noise consultant and submitted to DWER.   DWER have advised that they encourage any noise complaints to be directed to the ‘pollution watch’ team at DWER who will undertake compliance and enforcement.

Proposed point D also notes that either DWER or the City may, on request, place noise monitoring equipment on other land. As has been verbally advised in the past, the City is likely to be able to do so when crushing activity first occurs on the subject site – although it should also be noted that, unless the thresholds in the noise regulations are breached, compliance action will not be possible.

ADDENDUM

Other than where specifically set out in this Addendum, this report (including attachments) and its recommendations is the same as an earlier report on this application considered by the Council at its 27 January 2021 ordinary meeting, at which time the Council resolved to defer consideration of the application pending a review of the detailed wording of the recommended conditions. As a result of that review, the following changes have been made to the recommended conditions:

1.         The numbering for the conditions within recommended Condition 3 has been corrected (previously, there were two separate sets of conditions shown as 3.3 and 3.4).

2.         What was the second Condition 3.4, now Condition 3.6, which related to validating water supply available for dust suppression has been modified - to require the submission of a distinct ‘Dust Management Plan’, including validation of water supply for dust suppression as per the previously recommended condition, and also specifying that the Dust Management Plan must address dust management along the unsealed section of the haul route.

3.         What was Condition 3.8 (b), now Condition 3.10 (b), has been corrected so that the dust bond is held against satisfactory compliance with the Dust Management Plan, rather than the erroneous ‘Condition 5.13’.

4.         Within what was Condition 3.8 (d), now Condition 3.10 (d), a reference to ‘conditions 3.8 (i)-(iii)’ has been corrected to ‘conditions 3.10 (a)-(c)’.

5.         In Condition 6.7, reference to ‘Condition 2’ has been corrected to ‘Condition 3.2’.

6.         In Condition 6.10, reference to ‘Rehabilitation Management Plan’ has been corrected to ‘Rehabilitation Plan’ (as per Condition 3.2).

 

Further information / clarification is also provided in relation to several matters discussed prior to the Council resolving to defer consideration of the application, as follows:

1.         A copy of the updated Noise Impact Assessment was provided to Mrs Cathy Howard, who had asked for a copy of that document. A copy of that document is also attached to this report (Attachment J). It should be noted that the assessment relates primarily to the proposed crushing of gravel on the site, which is subject of separate and additional regulation by the Department of Water and Environmental Regulation (DWER), in addition to regulation under the City’s town planning scheme. DWER is in effect the primary regulator of noise impacts associated with the proposed crushing activity. As per verbal advice provided to Mrs Howard the City can, however, assist the proponents, neighbours and DWER if requested, by placing noise monitoring equipment on request – and subject to resourcing and prioritization.

2.         The proponents were asked to indicate whether they would support additional conditions / controls on when crushing activity may take place, and advised they are not prepared to support such conditions. As per verbal advice to the Council on 27 January, officers do not consider that there is a reasonable planning basis for such conditions.

3.         Mr Vernon Bussell asked questions about whether the sealed section of Nuttman Road could be extended if he was prepared to make a financial contribution towards that occurring. Mr Bussell was advised that it would not be reasonable to make that a condition of development approval, but that he, the proponents and the City could potentially discuss that opportunity separately, and that it may be an opportunity worth pursuing.


 

4.         Mr Vernon Bussell also raised concerns that the school bus times condition (recommended Condition 6.3 above) related to outdated or incorrect school bus times. City officers have sought updated advice about school bus times, but had not received that information at time of publication. City officers envisage that updated advice will be available prior to the first Agenda Briefing Session (and the Community Access Session), and that officers will present an amended recommendation if necessary prior to the Council Meeting. It is noted, though, that school bus times can and do vary throughout the life of an extractive industry development approval, and the condition is drafted with that in mind.

 

EXECUTIVE SUMMARY

The City has received a development application for an ‘Industry – Extractive’ to extract, screen and crush 170,000m3 of gravel at Lot 2 Nuttman Road and Lot 3 Chapman Hill East Road, Chapman Hill. 

 

Due to the nature of the issues requiring consideration and the level of community interest, the application is being presented to Council for determination, rather than being determined by City officers acting under delegated authority. A significant period of time has elapsed since the application was subject of consultation (and re-consultation). The key reason that determination of the application was not appropriate until now is that further technical information was required to address issues that were raised through the consultation process.

 

Having considered the application, including submissions received in relation to the application, City officers consider that the application is consistent with the City of Busselton Local Planning Scheme No. 21 and the broader, relevant planning framework including Local Planning Policy No. 2.3 – Extractive Industries (LPP2.3).

 

It is therefore recommended that the application be approved, subject to appropriate conditions.

 

BACKGROUND

The Council is asked to consider an application for ‘Industry – Extractive’ to extract, screen and crush 170,000m3 of gravel at Lot 2 Nuttman Road and Lot 3 Chapman Hill East Road, Chapman Hill. The application was originally submitted in 2017 and, at that time, advertising was undertaken to adjoining properties. On receipt of agency/neighbour submissions, the application was ‘put on hold’ pending a conditional clearing permit being issued by the State Department of Water, Environment and Regulation (DWER); additional hydrology information and a noise impact assessment was also required.  

 

The application was re-advertised in October 2019 with the additional information, however confirmation has only just been received from DWER that the noise impact assessment is acceptable.

 

Key information regarding the application is set out below:

1.         Landowner/s: LCM Super Custodian No 1 Pty Ltd & Egerton-Warburton Custodian No 2 Pty Ltd. – Brian Baker

2.         Applicant: Leeuwin Civil

3.         Site area: 76.67ha

4.         General description of site:  Lot 2 Nuttman Road and Lot 3 Chapman Hill East Road are located towards the southern end of Nuttman Road, just north of the junction with Chapman Hill East Road.  Lot 2 has frontage to Nuttman Road while Lot 3 has frontage to Chapman Hill East Road. The application site is located within the rural zone and the surrounding lots are predominately farmed, however there are a number of smaller lots within the vicinity of the site.

Lot 3 is heavily vegetated whereas Lot 2 is predominately cleared with a clump of vegetation towards the middle of the lot. The proposed extraction area would be located on the boundary of the two lots and would result in the removal of some vegetation.

5.         Current development/use: The lots are currently used for grazing and there is an existing dwelling and outbuildings on Lot 2.

6.         Brief description of proposed development: The proposed development application is for the extraction of 170,000m3 of gravel over 9.73ha and would include screening and crushing of the gravel on site. The depth of the extraction would be up to 2m below the existing surface. 

The proposed extraction would result in the removal of vegetation. The applicant has obtained a conditional clearing permit from (DWER).

The proposed crossover has been amended after the close of the public advertising period, in order to address submissions. Access/egress to the site is now proposed in an area already cleared opposite the junction with Walters Road. The crossover and gravel section of Nuttman Road is required to be widened. The proposed haul route would be northwards along Nuttman Road and Chapman Hill Road until it reaches the Busselton Bypass.

7.         Applicable Zoning and Special Control Area designations: The site is located within the Rural Zone.

8.         Land-use permissibility: Industry – Extractive is an ‘A’ use in the Rural Zone, meaning that it is a use that may be permitted in the Zone at the reasonable discretion of the City, following a compulsory period of consultation and consideration of any submissions received. Under LPP2.3, the site is located within Policy Area 3, which is considered less constrained than other policy areas due to the primarily agricultural nature of the area.

The following attachments are provided:

1.         Attachment A – Location Plan

2.         Attachment B – Site and Development Plans

3.         Attachment C – Application Material

4.         Attachment D – Agency responses

5.         Attachment E – DWER Preliminary Assessment Report for Vegetation Removal

6.         Attachment F – Response from Federal Department of Environment and Energy

7.         Attachment G – Plan of Noise-Sensitive Premises

8.         Attachment H – Schedule of submissions

9.         Attachment I – Traffic consultant advice

OFFICER COMMENT

The main issues considered relevant for detailed discussion in this report are the potential impact on the black cockatoo habitat as a result of the loss of vegetation, proposed haul route and the impact on the surrounding properties from dust, noise and disturbance.  Each of these issues is addressed below.

 

Removal of Black Cockatoo Habitat / Vegetation

The development application was originally submitted in 2017. At that time, officers advised the applicant that in light of the extraction resulting in the removal of vegetation and the impact from the vegetation removal on the Baudin and Carnaby’s Black Cockatoos, a clearing permit would be required to be obtained prior to the development application being determined. 

 

The applicant subsequently submitted a clearing permit application to DWER. DWER undertook a preliminary investigation and provided support for the clearing subject to a development application being issued, with the inclusion of a fauna management condition, a rehabilitation condition and a weed and dieback management condition. Of note, is that the rehabilitation condition would require an equivalent area that has been cleared to be rehabilitated with native species in order to minimise the impact on black cockatoo habitat. The applicant has also submitted a referral to the Federal Department of Environment and Energy (DEE) under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Department have advised that the proposed development is not a controlled action and does not require further assessment and approval under the EPBC Act before it can proceed. The letters from DWER and DEE are provided at Attachments E and F respectively.

 

As discussed above under Background, access was originally proposed to be adjacent to the northern boundary of Lot 2. Numerous submissions were received raising concerns that the proposed access would result in the removal of significant trees within the road reserve utilised by black cockatoos. As a result, the applicant has agreed to utilise an already cleared area opposite the junction with Walters Road, which has adequate sightlines and only minimal understorey vegetation would be required to be removed.

 

Haul Route

The proposed haul route would be northwards along Nuttman Road, Walsall Road and Chapman Hill Road until it reaches the Busselton Bypass. Many of the submissions have raised concerns that Nuttman Road is of insufficient width to accommodate the number of truck movements. The table below sets out key information about the haul route and the assessment of the application against the relevant planning framework (with the exception of the Chapman Hill Road section – which is a significant road - and the volume of traffic envisaged would not have any significant impact). Note that a maximum of up to 50 truck movements per day is proposed (but no truck movements on weekends or public holidays).

 

Section

Current standard

Current traffic volume

Proposed traffic volume (with development)

Key planning considerations

Recommendation

1.   Walsall Road

Approx. 6.2m seal

Weekday average 91.1 vpd

Total average 93.7 vpd

Weekday average – up to approx. 140 vpd

Road sufficient to cope with increased volume.

No road upgrade required.

2.   Nuttman Road (sealed section)

Approx. 4.2m (single lane) seal, widening to approx. 6.0m at bends, with approx. 1m shoulders

Weekday average 64.4 vpd vpd

Total average 65.8 vpd

Weekday average – up to approx. 115 vpd

Single lane seal not considered appropriate for significant truck movements, and development would result in volumes above 75 vpd threshold in LPP2.3. On basis of that and broader assessment, considered that upgrade to two lane seal appropriate.

Upgrade to two-lane (6.2m) seal, with constructed gravel shoulders.


 

3.   Nuttman Road (unsealed section)

Approx. 6.5m gravel formation (narrower at some points)

Weekday average 29.5 vpd vpd

Total average 32.0 vpd

Weekday average – up to approx. 80 vpd

Development would result in volumes above 75 vpd threshold in LPP2.3, but well below 150 vpd threshold in ARRB Guidelines. Once extraction has been completed, volume will also be well below what would be required to maintain a sealed road. On basis of that, considered that upgrade to 7.0m constructed gravel appropriate.

Upgrade to 7.0m gravel formation.

 

Further information regarding traffic impact assessment is set out below.

 

The City undertook traffic counts along Walsall and Nuttman Roads from 3 December 2020 to 22 December 2020. One traffic counter was installed along Walsall Rd and two along Nuttman Rd. The locations were as follows:

·        Counter 1: Walsall Road - 100m southeast of the intersection with Chapman Hill Rd;

·        Counter 2: Nuttman Road - 70m south of the intersection with Walsall Rd;

·        Counter 3: Nuttman Road - 2.1km south of the intersection with Walsall Rd.

 

Over the time in which the data was collected the following average vehicles per day (vpd) were recorded:

·        Counter 1: weekday average vpd 91.1, total average vpd 93.7;

·        Counter 2: weekday average vpd 64.4, total average vpd 65.8;

·        Counter 3: weekday average vpd 29.5, total average vpd 32.0.

 

The data that was collected also indicated that between 83.5% - 84.39% of the traffic was Class 1 vehicles as classified by the Austroad Vehicle Classification system; which includes vehicles up to 5.5m in length not towing anything (i.e. sedan, wagon, 4WD etc.). 3.4% - 12.0% were Class 2 vehicles including vehicles up to 5.5m towing a trailer, caravan or boat. The remainder of the vehicles, 11.5% - 13.1%, were larger vehicles and therefore of a higher class.

 

LPP2.3 states where extractive industry proposals on existing unsealed roads warrant sealing due to volumes exceeding 75 vpd as above, then the minimum upgrade shall be a seal of 6.2m”. Recent applications have considered the issue of upgrading to a sealed road and the City has previously sought advice from an independent traffic consultant. The traffic consultant advised that LPP2.3 should be given consideration for the requirements of road upgrades but, in part due to the age of the LPP, it does not reflect contemporary approaches, including Austroad Guidelines (see Attachment I for that advice).

 


 

The Austroad Guidelines detail standards for the design of sealed roads in Western Australia. As Austroad does not deal with unsealed roads, Main Roads advise that for guidance on the design of unsealed roads, reference is made to the ‘ARRB Unsealed Roads Manual: Guidelines to Good Practice’, 3rd edition March 2009-08-19 (ARRB Guidelines). Under the ARRB Guidelines, the carriageway requirements for roads with ‘very low volumes’ (less than 150vpd) is one lane with a carriageway width (including shoulders) of 5m–6m. This standard allows for vehicles to pass each other by riding half on the traffic land and half on the shoulders. ARRB Guidelines state that roads carrying ‘heavy or long vehicles towing multiple trailers’ (i.e. any vehicle greater in length or weight than an ‘as-of-right’ vehicle) should require additional road width in the order of 200mm per lane. It is considered that by requiring the carriageway width to be widened to 7m, adequate lane width is provided for two semi-trailers to pass. Taking into account the proposed maximum vehicle movements per day, it is considered that the likelihood of this occurring is relatively low, however, if this does occur it can be accommodated in the wider carriageway width.

 

There is not considered to be any planning basis on which to either refuse the application on traffic grounds, or require a more significant upgrade than what is recommended.

 

Impact on Neighbouring Properties / Winery

A number of concerns have been raised in relation to the potential impact of the proposal on the “residential amenity” of the area. The main emissions generated from an extractive operation that have the potential to have a detrimental impact upon the amenity of surrounding properties are noise and dust. In line with the requirements of the Environmental Protection Act 1986, it is necessary for individual operators to take all reasonable and practicable measures to prevent or minimise emissions from their premise.  It is generally expected that, through appropriate site layout and design as well the implementation of adequate management plans, emissions from an individual extractive operation can be prevented from causing an adverse impact beyond the boundaries of the particular site. Generally, impacts will decrease with increasing distance from the source of the emission and therefore buffer distances are applied.

 

Gravel extraction and crushing of the scale proposed requires a works approval from DWER, and is required to comply with the Environmental Protection Authority Guidance Statement No.3 (Guidance Statement). The Guidance Statement provides advice on generic separation distances between specific industries and sensitive land uses to avoid or minimise the potential for land use conflict.  The distances outlined in the EPA Guidance Statement are not intended to be absolute separation distances, rather they are a default distance for the purposes of:

·        identifying the need for specific separation distance or buffer definition studies; and

·        providing general guidance on separation distances in the absence of site specific technical studies.

Where a lesser setback is proposed than that identified within the Guidance Statement, it is not adequate justification for an application to not be supported, but rather that site-specific investigations are to be undertaken and reports demonstrating that the separation distance will meet the acceptable criteria are to be submitted. Furthermore, enforceable management techniques should be applied to ensure an appropriate outcome.

 

DWER have advised the City that the extraction of gravel is not to be assessed against the hard rock requirements of the EPA Guidance Statement, therefore in relation to separation distances, the EPA Guidance Statement provides the following generic buffer distances applicable to this application:

·        Gravel extraction (not including crushing): case by case; and

·        Crushing of gravel: no set standard applies as not considered to be hard rock and therefore the ‘crushing of building materials’ buffer is applied at 1km.

 

The City’s LPP2.3 states as follows in relation to setback distances:

Notwithstanding 6.2.1 and 6.2.2 above, the extraction of sand and limestone may be located less than 500m but generally no closer than 300m from a sensitive land use dependent upon the nature and scale of the operation and the content of a Dust and Noise Management Plan including consideration of the requirement for dust and noise measuring equipment to be installed within the site for the duration of the extraction process. However this will not apply to the extraction of basalt and other hard rock quarrying which requires greater setback distances (generally a minimum of 1000m) to a sensitive land use.

 

A works approval has now been submitted to DWER with accompanying documents including a noise management plan. The City has referred the noise assessment to DWER (Noise Branch) and they requested some minor changes which have been undertaken by the applicant.

 

There are a number of dwellings sited 500m from the proposed extraction. A plan of noise-sensitive premises is provided as Attachment G. LPP2.3 states “No extractive is to be located within 500m of a residence where the owner or resident of such objects”. The closest dwelling that has been noted on the plans (Lot 31) would be 350m from the proposed extraction site. Upon visiting Lot 31, it was noted that an outbuilding has been converted into habitable accommodation. The City has no records of a development application or building permit being issued for a dwelling at this site and no comments have been received from the occupier. Notwithstanding the absence of a valid approval for a dwelling, the noise assessment has included the outbuilding as a ‘Receiver’, and it concludes that full compliance is achieved for the proposed operations.

 

In regard to the remainder of dwellings surrounding the application site, the noise assessment considers the impact from the proposed use on all the surrounding properties. It concludes that the adjusted worst-case noise levels are below the day-time assigned noise levels for all the noise-sensitive premises. 

 

A number of submissions have been received in respect of the impact on Whicher Ridge Winery which is located on the eastern side of Chapman Hill East Road. There would be approximately 915m from the closest extraction cell to the closest winery building on the lot. LPP2.3 considers the impact on tourist attractions and states that when an extractive industry is approved within 1km of an attraction, additional conditions to reduce amenity impact from noise and dust may be imposed. DWER have confirmed that in accordance with the Noise Regulations, a winery is considered a commercial premises not a sensitive receptor. In light of the conclusions of the noise assessment, it is considered that there is sufficient separation to ensure that there will not be an unreasonable impact on the winery.

Statutory Environment

The key statutory environment is set out in the Scheme, the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), Schedule 2 of which is the ‘deemed provisions’, which also functionally form part of the Scheme. The key aspects of the Scheme and Regulations relevant to consideration of the application are set out below.

 


 

Zoning

The site is zoned ‘Rural’. The objectives of the ‘Rural’ zone are as follows:

a.         To provide for the maintenance or enhancement of specific local rural character.

b.         To protect broadacre agricultural activities such as cropping and grazing and intensive uses such as viticulture and horticulture as primary uses, with other rural activities as secondary uses in circumstances where they demonstrate compatibility with the primary use.

c.         To maintain and enhance the environmental qualities of the landscape, vegetation, soils and waterways, to protect sensitive areas especially the natural valley and watercourse systems from damage.

d.         To provide for the operation and development of existing, future and potential rural land uses by limiting the introduction of sensitive land uses.

e.         To provide for a range of non-rural land uses where they have demonstrated benefit and are compatible with surrounding rural uses.

f.          To provide for development and expansion of the viticultural, winemaking and associated tourism activities and other industries related to agricultural activities, in addition to general rural pursuits, in a manner that does not cause adverse environmental impact.

g.         To provide for the extraction of basic raw materials, where appropriate.

The proposal is considered to satisfy the objectives of the zone.

 

Land-use and permissibility

The proposed land uses which is defined as follows:

“Industry – Extractive” means premises, other than premises used for mining operations, that are used for the extraction of basic raw materials including by means of ripping, blasting or dredging and may include facilities for any of the following purposes – 

(a)       the processing of raw materials including crushing, screening, washing, blending or grading,

(b)       activities associated with the extraction of basic raw materials including wastewater treatment, storage, rehabilitation, loading, transportation, maintenance and administration.

 

Industry - Extractive is identified as an ‘A’ or advertised use within the Rural zone.

 

Matters to be considered

Clause 67 of the deemed provisions within the Regulations sets out ‘matters to be considered’ by a local government in considering an application for development approval. The following matters are considered to be relevant to consideration of this application:

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

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

(c)        any approved State planning policy;

(d)       any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d); …

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

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

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

             (i)    environmental impacts of the development;

             (ii)   the character of the locality;

             (iii) social impacts of the development;

(o)       the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;            

(p)       whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;

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

(s)       the adequacy of —

(i)  the proposed means of access to and egress from the site; and

(ii) arrangements for the loading, unloading, manoeuvring and parking of vehicles;

(t)        the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety; …

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

(y)       any submissions received on the application; …

(zb)     any other planning consideration the local government considers appropriate.

 

The proposal generally complies with the relevant provisions noted above.

 


 

Relevant Plans and Policies

Relevant plans and policies must be given due regard in assessing the application, but cannot and do not bind the local government in determining an application for development approval. Plans and policies considered in the assessment of the application are as follows:

 

Local Planning Policy 2.3 - Extractive Industries

LPP2.3 – Extractive Industries provides guidance regarding the extraction of basic raw materials. The application site is located within Policy Area 3. The elements of LPP5A that are considered particularly relevant to assessment of the application are as follows:

 

1.         4.2.2.3         Policy Areas 2 and 3:

Notwithstanding 6.2.1 and 6.2.2 above, the extraction of sand and limestone may be located less than 500m but generally no closer than 300m from a sensitive land use dependent upon the nature and scale of the operation and the content of a Dust and Noise Management plan.

 

2.         4.2.2.5         Policy Areas 2 and 3:

Where an extractive industry is approved within 1km of a residence or tourist accommodation or attraction, additional conditions to reduce amenity impact from noise and dust may be imposed, including operating times.

 

3.         4.2.3             Environmental Impacts:

The potential impacts of an extractive industry will be assessed against the Scheme and the following criteria:

a)        If approvals or advice has been issued by Department of Environment and Conservation and if not the extent of remnant vegetation to be cleared, including road verges resulting from road widening and upgrading; and proximity to areas of declared rare or endangered flora and fauna (DRF) or threatened ecologic communities (TEC).

b)        Proximity to and significance of watercourses, drains, wetlands, and on-site and adjoining dams and need for surface drainage and groundwater management plans.

c)         Evidence of Dieback disease and the suitability of a Dieback Hygiene Management Plan. (The Dieback Working Group-Best Practice Guidelines should be referenced in the formulation of a dieback management plan, including the matters that should be addressed in the plan and the responsibilities for the operator to comply with best practice management techniques).

d)        Comments or recommendations from the Environmental Protection Authority, Department of Agriculture and Food WA, the Department of Water or any other relevant government agency.

e)        Proposed end use of site, particularly if intending to revert to agricultural land.

f)         The extent of bedrock, underlying clay soil strata and/or ground water levels to a depth of 0.5 m below the base of the excavation area.

g)        Any other ecological or environmental issues that may be relevant.

 

4.       4.2.4.3           Policy Area 3:

Extractive industry to be effectively screened from all major tourist routes where the impact warrants screening.


 

5.         4.2.5             Route Assessment and Transportation:

The potential impacts of an extractive industry will be assessed against the Scheme and the   following criteria:

a)        The outcomes of the Schedule 1 – Traffic Impact Assessment and Road Upgrading Guidelines.

b)        Any comments or recommendations from Main Roads WA.

c)         The impacts of haulage traffic noise, vibration and amenity loss on surrounding areas.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

Clause 64 of the deemed provisions sets out circumstances in which an application for development approval must be advertised, and also sets out the means by which applications may be advertised. Given the scale of the proposed development, it was considered appropriate to advertise the development application.

 

The purpose of public consultation is to provide an opportunity for issues associated with a proposed development to be identified by those who potentially may be affected. A development application should not be approved or refused based on the number of submissions it receives, rather all applications must be determined on the merits of the particular proposal, including consideration of any relevant planning issues raised through consultation.

 

The application was open for submissions from 22 November 2017 to 20 December 2017 and re-advertised with the additional information from 2 October 2019 to 24 October 2019. The application was advertised in the following manner:

1.         Information regarding the application was posted on the City’s website;

2.         A portal was created using the City’s YourSay platform for the online lodgement of submissions;

3.         Letters were sent to all the land owners within 1km of the site; and

4.         A notice was placed in a local newspaper on 2 October 2019.

 

Submissions were received from a total of 14 people. A schedule of submissions is provided as Attachment F. The schedule identifies who submissions were received from and summarises the submissions. 

 

The submissions can generally be grouped as follows:

 

Objection

·        The proposed access would be onto a dangerous section of Nuttman Road;

·        Nuttman Road is not designed for heavy vehicles;

·        Noise, dust and visual amenity concerns;

·        Impact on winery and tourist attraction;

·        Removal of feeding and breeding habitat for Black Cockatoos on site and road reserve;

·        Revegetation unlikely to provide suitable replacement habitat for a long time.

 

Support

·        Extraction of gravel subject to a revised access and road upgrades.

Where issues are raised which are not able to be considered, as they do not relate to the relevant planning framework, the comment provided (note comments have been grouped given the number of submissions received) indicates that, but does not provide further commentary or discussion. That does not necessarily suggest that the issues are not genuine issues of concern to the submitter or more broadly, but they are unfortunately not issues that can or should be addressed in the assessment of the application.

 

In addition to the above, the application was referred to DWER, Department of Biodiversity, Conservation and Attractions and the Department of Mines, Industry Regulation and Safety. The agencies’ comments are provided as Attachment D.

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 risk to the City is considered to be the potential reputational and environmental risk that may arise if the site is not managed in a manner consistent with the conditions of approval. Mitigation of that risk requires proactive and appropriately resourced compliance activity.

Options

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

1.         Refuse the proposal, setting out reasons for doing so; or

2.         Apply additional or different conditions.

CONCLUSION

Subject to the inclusion of relevant conditions, the proposal is considered appropriate to support and it is accordingly recommended for approval.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The applicant and those who made a submission will be advised of the Council decision within two weeks of the Council meeting.


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Attachment a

Location Plan

 


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Attachment b

Site and Development Plans

 



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Attachment c

Application Material

 





















































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Attachment d

Agency Responses

 



















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Attachment e

DWER Preliminary Assessment Report for Vegetation Removal

 













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Attachment f

Response from Federal Department of Environment and Energy

 




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Attachment g

Plan of Noise Sensitive Premises

 


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Attachment h

Schedule of Submissions

 











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Attachment i

Traffic Consultant Advice (initially related to an earlier application)

 









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Attachment j

Updated Noise Impact Assessment

 




























Council                                                                                      243                                                           10 February 2021

18.             Motions of which Previous Notice has been Given

18.1           NOTICE OF MOTION - INITIATION OF SCHEME AMENDMENT 50

Councillor Riccelli, having given notice, moved the below motion.

 

Council Decision

C2102/021              Moved Councillor S Riccelli, seconded Councillor J Barrett-Lennard

 

That the Council resolves to:

1.         In pursuance of the Planning and Development (Local Planning Schemes) Regulations 2015, initiate Amendment No. 50 to the City of Busselton Local Planning Scheme No. 21 for community consultation, for the purposes of amending the Scheme map by modifying the residential density coding from R80 to R60 over Lot 81 (18), Strata Plan 17588 (20), and Lots 115 to 127 (26-50), Geographe Bay Road, Dunsborough, as set out at Attachment A.

2.         Pursuant to Regulation 35 (2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), determine that Amendment No. 50 is a ‘standard amendment’ in accordance with r. 34 of the Regulations as it is:

(a)       an amendment relating to a zone or reserve that is consistent with the objectives identified in the Scheme for that zone or reserve;

(b)       an amendment that would have minimal impact on land in the Scheme area that is not the subject of the amendment;

(c)       an amendment that does not result in any significant environmental, social, economic or governance impacts on land in the Scheme area.

3.         Note that, as the draft Amendment is in the opinion of the Council consistent with Part V of the Planning and Development Act 2005 (Act) and Regulations made pursuant to the Act, upon preparation of necessary documentation, the draft Amendment be referred to the Environmental Protection Authority (EPA) as required by the Act, and on receipt of a response from the EPA indicating that the draft Amendment is not to be subject to formal environmental assessment, be advertised for a period of 42 days, in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015. In the event that the EPA determines that the draft Amendment is to be subject to formal environmental assessment, this assessment is to be prepared prior to advertising of the draft Amendment.

CARRIED 9/0

 

REASONS

City recommendations for introducing the R-AC3 coding into the Dunsborough CBD and re-coding the zones on Geographe Bay Road from R15 to R80 was included in an Omnibus Amendment advertised in Nov 2015. These recommendations were included amongst many other suggested changes to the Local Planning Scheme, allowing insufficient focus on an important consideration for ALL community members within the region. 

 


 

This was recognised at the time and a Special Elector’s Meeting was called for via a community petition in March 2016. A question was asked at the Special Elector’s Meeting around the re-coding and the question and the response are highlighted below (taken directly from the minutes available to the public):

4.         Why is the increase (or relaxation) in heights for buildings in the CBD’s of Busselton and Dunsborough deemed necessary – especially to R80 and the introduction of R-AC3. 

Answer: The proposed R80 density increase in Dunsborough will continue to be controlled by clause 5.8 of the Scheme, in other words, retaining the two-storey and three-storey height controls.  The Amendment proposes to alter clause 5.8 by increasing the permitted height from 7.5 metres to 9 metres and from 10 metres to 12 metres, depending on the distance of a property from the Mean High Water Mark.  This is discussed within the Amendment document at section “4F. Increasing the general permitted height for buildings” (page 16).

 

The proposed relaxation of the height controls as it relates to the CBDs proposes to align with the Residential Design Codes (R-Codes) for the areas identified with the proposed R-AC3 coding.

 

This is a clear indication that at that time (March 2016), the City intended to control the building heights to no more than 3 storeys by utilising clause 5.8 of the Scheme relating to the high water mark. This should have been applied to the recent 4 storey apartment DA and discussed at the JDAP hearing?

 

Communication with Dunsborough residents has highlighted community concern over future building heights within the Dunsborough Town Site and along Geographe Bay Road and there has been significant opposition expressed regarding the proposed 4 storey Apartment Building opposite Seymour Park. There were 120 respondents that replied and 93% of those were opposed to the development.

 

A recent petition submitted by the DPA with over 740 signatures clearly demonstrates the community’s perspective regarding building heights on Geographe Bay Road, Dunsborough.  

 

Having attended the Urban Design Workshop late last year, it was also clearly identified that the unique, quaint, beachside, ‘village’ character of the town was crucial to maintain moving forwards, and this included the need to cap building heights. The Dunsborough Foreshore and in fact the town centre is not compatible with 4 storey buildings.  Mixed use can still be achieved with a 3-storey building if desired. 

 

Whilst there is an Activity Centre Plan currently underway, this is still some time away.  Given the impending 4 storey apartment building currently being reviewed at JDAP and that a house close by has now gone on the market, advertising the benefits of their R80 zoning, I feel it is imperative we consider this matter now and recommend Amendment No 50 to the City of Busselton Local Planning Scheme No 21 is modified by amending the R80 coding to R60 as per the attached motion and map.

 


 

OFFICER COMMENT

Introduction

Officers have a range of concerns with the proposed motion that the Council may wish to consider in determining whether or not it is supportive. Those concerns generally relate to either the process that has led to the motion being proposed, or to the outcome that may result if the motion is supported by the Council (and ultimately supported by the Hon. Minister for Planning, noting that the Minister is the final decision-maker for town planning scheme amendment proposals). Officers also feel it may be useful for the Council to be aware of some more of the background associated with the R80 density coding that currently applies to the subject land. Comments are presented below under the sub-headings ‘Process’, ‘Outcome’, ‘Background’ and ‘Conclusion’.

Process

Changes of the kind proposed, especially where such changes may significantly reduce the development potential of the affected land, would usually be preceded by strategic planning, including consultation, before the formal process to actually change the zoning is commenced. That allows for a fuller exploration of the issues before particular zoning changes are actually advanced, supporting considered decision-making and procedural fairness.

 

The proposed motion, whilst supported by a petition, has not been informed by prior strategic planning or any other consultation. It is also contrary to the strategic planning direction established by the Council over a number of years, leading up to the introduction of the R80 coding over the subject land; and the setting of that direction did involve multiple rounds of consultation.

 

Wherever possible, local governments should seek to avoid making ad hoc planning decisions. Doing so undermines faith in the soundness and consistency of decision-making, and denies those that may be affected by the decision reasonable opportunities to both be informed about, and provide input into, decision-making.

 

The Council has itself also already supported a process to provide more detailed planning and design guidance for the Dunsborough Town Centre; through a February 2018 resolution to prepare what was then referred to as an Activity Centre Plan. Work to develop that plan (now known as a ‘Precinct Structure Plan’) has been underway since that time, and it is expected that a draft will be able to be presented to the Council in coming months. The subject land is within the area expected to be subject of that Plan.

 

An ad hoc decision to start a town planning scheme amendment before that Plan has been considered by the Council will take resources away from the Precinct Structure Plan work, slowing that process down (also note that the cost to the City of the proposed amendment, in staff time and other costs, such as advertising, is estimated to be approximately $10,000-$15,000). There is also a strong likelihood that the WAPC and/or Hon. Minister for Planning will not support, or not make a final decision on, the amendment until the Precinct Structure Plan has been subject of a final Council recommendation to the WAPC. As such, should the Council ultimately consider that a reduction in permitted (or greater controls over) building height or development density on the subject land is appropriate, the proposed motion may (in fact, is likely to) mean that the desired change takes longer to come to fruition, rather than less.

 

There has been a suggestion from some community members that the commencement of the amendment process may change the outcome of an application on the subject land before the amendment process has actually been completed. It is the view of officers that the change proposed would not have a material impact unless and until any amendment process is actually complete.

 


 

The current context is quite different to the ‘Puma’ proposal, which was ultimately withdrawn following several rounds of Development Assessment Panel, State Administrative Tribunal and Supreme Court proceedings. Changes to the town planning scheme (i.e. Amendment 29 – see further information in ‘Background’ below) advanced whilst those proceedings were underway were actually completed before the application was withdrawn. Those changes were also supported by the broader strategic planning framework, and meant that it was at least arguable that aspects of that proposal could no longer be lawfully approved (i.e. there was no discretion to approve). The proposed motion is not supported by the broader strategic planning framework and would also not mean that development at the equivalent of an R80 density could not be lawfully approved on the subject land.

 

It is also not entirely clear what the proposed change is seeking to achieve or why, other than a reduction in the building height that would ordinarily be permitted on the subject land (and it is understood that people may see that as being desirable, but the setting of planning direction ordinarily requires a deeper understanding of why, and a fuller exploration of how, before formal processes commence). If that is the key aim, however, it should be noted that there are alternative means of controlling height, but proceeding straight to the formal town planning scheme amendment process means that the opportunity to better understand the aims, or explore those alternative means, is significantly reduced.

 

The introduction of the R80 density coding currently in place, however, followed a long process, principally over the period 2013-2017 (beginning with the Council adopting the Dunsborough Town Centre Conceptual Plan in draft form in early 2013, and culminating in the Gazettal of Amendment 1 to the City of Busselton Local Planning Scheme No. 21 in mid-2017). Whilst Amendment 1 was very broad-ranging, and that can create challenges with consultation (i.e. some elements may get ‘lost’), there were a number of submissions addressing the then proposed introduction of the R80 density coding (so, in practice, it was certainly not ‘lost’ entirely). The same proposal had also been previously set out in the draft Conceptual Plan, which was a more focused/targeted set of proposals.

 

The Council decision to include the proposed re-coding and re-zoning of the subject land as a proposal in the draft Conceptual Plan in early 2013 was also an extension of earlier work, which had identified that it would be appropriate to support greater building height and density in both the Busselton City Centre and Dunsborough Town Centre, and some adjacent areas, and to also support development which would link and integrate the cores of those two centres with the adjoining foreshore areas. A summary of that history is set out in the ‘Background’ section below.

 

That long process provided the community and the Council with multiple opportunities to comment on the proposed planning direction before changes to the town planning scheme that actually governs development were formally initiated. There was then a further round of consultation before final decisions were made to actually change the town planning scheme. Whilst there were submissions received opposing or raising concerns with the proposed direction, supportive submissions were also received, and the Council considered the issues raised in the submissions before making each of its decisions.

 

A further reason for undertaking consultation before town planning scheme amendment processes are formally commenced is that, once an amendment process has been started by the Council it must be continued to conclusion, in the form of a final decision by the Hon. Minister for Planning. Whilst the Council can recommend modifications or that an amendment is not approved at all, if the Minister has a different view to the Council the Minister’s decision is final (other than if there is a disallowance motion in the Parliament).

 


 

Outcome

If the proposed motion is supported, and ultimately results in the recoding of the subject land from R60 to R80 (i.e. if the amendment was ultimately supported by the Minister), it may significantly reduce the development potential of the affected land. There would, however, continue to be discretion to approve development that, in terms of height and/or density, was greater than the ‘normal’ controls applicable under the R60 density coding (some information on those controls is set out in ‘Background’ below). It is therefore difficult to know exactly what the outcome would be in the fullness of time, so for simplicity’s sake, the focus below is on what impact a reduction in potential building height from four down to three storeys would have – which is understood to be a key aim of the proposed motion. The potential impact of continuing to support development up to four storeys is also discussed.

 

An obvious impact of not supporting development of four storey buildings on the site is that someone who may want to live in, or own, a fourth storey apartment, would not be able to do so. A less obvious but also potentially real impact is the prospect that not allowing the development of fourth storey apartments would mean that a development does not occur at all (because it is uneconomic), meaning that the opportunity to live in or own apartments on lower floors is also reduced. Also less obvious but potentially real impact is the likelihood that other land uses, which provide business and other opportunities for the community, such as cafes, are also not developed at all.

 

The opportunity for more people (and for people of somewhat lesser wealth, who may not be able to afford a house in such a location) to live close to the beach and Town Centre may also be reduced (although it is unlikely that any apartments delivered in this location would constitute ‘affordable housing’, as that term would ordinarily be understood). The development of apartments in Dunsborough is also potentially important in allowing people to ‘age in place’, in providing greater housing choice and diversity, and in reducing urban sprawl. It is also understood that there is significant interest amongst existing Dunsborough residents in owning or living in apartments in proximity to the beach and Town Centre. The value of the affected land is also likely to be reduced through a reduction in the density coding (although in and of itself, that is not an important planning consideration). Given the above, it is clear that a reduction in permitted height could have significant negative impacts.

 

Restricting building or development density can of course have these kinds of impacts in general, and could conceivably be used as arguments against most planning controls. That is why it is important to consider both the potential negative and the potential positive impacts of development controls or their absence. Other than with respect to those who live in or own adjoining properties, it is not clear what impact continuing to support four storey development per se would have on the community. The nature of the foreshore reserve on the opposite side of Geographe Bay Road is such that, in almost all instances, a fourth floor will be no more visible from the beach than would a third floor, and a third floor no less visible than a fourth floor from Geographe Bay Road itself.

 

Even if the potential differences in terms of impact were significant, they may potentially be addressed without actually reducing maximum building height. For instance, through ‘stepping back’ the portion of a development above the third storey, so that it is less apparent when viewed from outside the site. Processes are currently underway to support introduction of greater design guidance and control, as set out in ‘Background’ below. Restricting height, in and of itself, though, can reduce design flexibility and quality (in simple terms, there are many examples of attractive four storey buildings and unattractive three storey buildings, and vice versa).

 


 

The differences between three and four storey development are perhaps more around ‘character’ or ‘identity’. Those are legitimate and important planning considerations, and the experience in Western Australia and elsewhere is that there will often be angst when relatively dense or high development is proposed for the first times in particular communities. The development of more apartments and relatively dense/high development in and around the Dunsborough Town Centre, as supported by the current planning framework, if it occurs, will change the character of Dunsborough, especially the central part of the town. The character of the central part of the town is likely to change in coming years, though, even in the absence of apartment development – as there are also significant opportunities for additional commercial development. It is, however, seen as unlikely that development up to three storeys would have significantly different impact than development up to four storeys.

 

Background

The R80 density coding was applied to the land through Amendment 1 to the City’s current town planning scheme (City of Busselton Local Planning Scheme No. 21 – ‘LPS21’). Amendment 1 was what is described as an ‘Omnibus Amendment’ (note this is not a formal or defined category), in that it contained a range of different, often unrelated, changes, rather than simply ‘rezoning’ a specific site. The City has periodically undertaken Omnibus Amendments of that kind, both before and after the Gazettal of LPS21 in 2014 (although the WAPC has recently indicated that the City should not undertake further Omnibus Amendments ahead of the new scheme currently in preparation).

 

The scope of Amendment 1 was particularly broad, for two key reasons. Firstly, for a period of around three years there had been a ‘moratorium’ on amendments to the previous scheme (Shire of Busselton District Town Planning Scheme No. 20 – ‘TPS20’) to allow for the finalisation of LPS21, which was a ‘policy neutral, consolidation’ of TPS20. That was necessary because TPS20 was by that stage very difficult to work with, and as the City did not have an adopted Local Planning Strategy, it was not possible to change the substantive planning direction through the new scheme (i.e. LPS21). Secondly, prior to and during the moratorium period, the Council had adopted a range of planning strategies or other documents that established its strategic planning direction, and substantial change to the scheme was required to reflect that direction.

 

The planning strategies and other documents particularly relevant to Dunsborough Town Centre and adjacent areas were the –

1.         Local Commercial Planning Strategy (LCPS) – adopted by the WAPC in 2011;

2.         Local Cultural Planning Strategy (LCultPS) – adopted by the Council in 2011, but only ‘noted’ by the WAPC;

3.         Local Tourism Planning Strategy (LTPS) – adopted by the WAPC in 2013; and

4.         Dunsborough Town Centre Conceptual Plan (DTCCP) – adopted by the Council in 2014 (not forwarded to WAPC for consideration, as it was not intended to form part of the planning framework in a way that would require consideration by the WAPC).

 

Development of the first three documents listed above commenced in 2006, as part of what was then referred to as the ‘scheme review’ process. The recommendations of each of those documents, which are not always entirely consistent or aligned with each other, were considered by the Council in initiating and finalising Amendment 1. Key relevant recommendations of those documents are set out below.

 

Since Amendment 1 was finalised, the City’s Local Planning Strategy (LPS) has also been finalised, although it was in draft form when Amendment 1 was progressed. There has also been a further Omnibus Amendment (Amendment 29) which made changes to planning controls in the Dunsborough Town Centre.

In addition, since Amendment 1 was Gazetted there have been changes to the Residential Design Codes of WA (R-Codes), with the effect that ‘R80’ (or ‘R60’) does not have exactly the same meaning and effect as was the case when Amendment 1 was Gazetted.

 

Some information about Amendment 1, Amendment 2, the LPS and the R-Codes (and the height controls in LPS21) is also set out below. Some information on the ‘Dunsborough Activity Centre Plan’ – which due to changes in State level terminology will now be called the ‘Dunsborough Precinct Structure Plan’ (Dunsborough PSP) is also provided below. Information regarding the mooted establishment of a ‘South West Design Review Panel’ (SWDRP) is also provided.

 

LCPS

The LCPS contains the following recommendations:

21)      Council should consider a wide reaching TPS Amendment to facilitate mixed uses in the Business zone. One of the key platforms of this amendment should be a revision of the policy statement to allow residential development beyond a ‘subsidiary’ interpretation in the Business zone…

28)      Council should consider the preparation of an amendment to the TPS to facilitate the following land use changes in the Dunsborough town centre:

a.        A clarification of the term subsidiary in reference to residential uses in the policies for the Business zone (as per the suggested amendment for Busselton).

b.        The rezoning of the land along Dunn Bay Road (excluding the parkland) to allow higher intensity, mixed use development…

29)      Council should commission a study of urban design improvements in the Dunsborough town centre, with particular reference to the development of a design theme for inclusion into the TPS as a policy.

30)      Council consider amending the TPS to lift height limits in the town centre and to rezone the selected sites to an R40-R80 designation.

31)      The development of buildings higher than three storeys in Dunsborough town centre should require a careful consideration of design issues and the development of more detailed planning guidelines relating to taller buildings.

 

LCultPS

The LCultPS contains the following recommendation:

Recommendation 9.2:

That there continue to be detailed design guidance for the Busselton and Dunsborough town centres, that should be refined over time, and that the following development incentives are considered:

·        Mixed-use development – where both commercial and residential/ accommodation uses each constitute a minimum of 25% of the floorspace of a proposed development, up to a 50% density bonus in terms of both unit density and plot ratio.

·        Places for informal social interaction – where a development incorporates a restaurant, small bar or café that meets minimum specifications, do not count that space as part of plot ratio calculations, and do not require the provision of car parking for the first 100m2 of this floor-space, and provide up to a 25% density bonus in terms of plot ratio for the remainder of the development.

·        Non self-contained tourist accommodation (hotel style) – generally support development up to 5 storeys high, where detailed design issues are adequately addressed no density or plot ratio controls, car parking provision reduced from 1 bay per unit to 1 bay per 2 units (and to nil if paid parking is introduced into either town centre in future).

·        Affordable housing – up to a 100% density bonus in terms of unit density and a 50% bonus in terms of plot ratio for 1 bedroom dwellings (note that, because of provisions of state planning policy, up to a 50% density bonus in terms of unit density would otherwise apply) and up to a 50% density bonus in terms of both unit density and plot ratio, and a reduction in on-site resident car parking provision from 2 bays per dwelling to 1 bay per dwelling for 2 bedroom dwellings.

·        Where more than one of the incentives is triggered, incentives may be accumulated, up to maximum of a 100% density bonus in terms of both unit density and plot ratio.

 

LTPS

The LTPS contains the following recommendation (part of Recommendation 1) -

The following sites are identified as ‘Tourist’ zoned land where alternative zonings may be considered (see also Table 4): Site 42 - Lot 500-502 (394-398), Bussell Highway, Broadwater…

Site 57 - Bay Village Resort, Lot 200, Dunn Bay Road, Dunsborough

Site 58 - Dunn Bay Centro, Lot 510 Dunn Bay Road, Dunsborough

Site 59 - Lots 108-112 (13-21) Dunn Bay Road, Dunsborough

Site 60 - Lot 202 (24) Dunn Bay Road, Dunsborough

 

DTCCP

The image below illustrates the key relevant elements of the DTCCP in relation to the proposed motion.

A copy of the DTCCP is provided as Attachment B.

 

The reports considered by the Council in relation to the DTCCP (which also related to a similar plan prepared for the Busselton City Centre) set out the key rationale for identifying the area close to the town centre, along Geographe Bay Road, and represented a crystallisation of much of the thinking in the earlier documents. The key rationale (set out in the pre-consultation report) was as follows –

Neither centre currently takes sufficient advantage of their proximity to Geographe Bay. The two respective foreshore enhancement projects will help in ameliorating that, but the centre of gravity of both centres is currently separated from the public foreshore areas by areas of relatively low or intermittent activity. Planning encouragement and/or other incentives may be necessary to assist in properly linking the two centres with their respective foreshores. A key aim should be the creation of a continuous chain of interest and pedestrian amenity from the middle of each centre to the foreshore and coast.

 

The R80 coding indicated on the DTCCP was included in the draft DTCCP subject to consultation prior to final adoption by the Council.

 

LPS

The LPS was adopted by the WAPC in final form in early 2020, but had been in draft form since 2016 (and in working draft forms as early as 2014).The LPS sets out the following strategy (Strategy 1(f)) –

f) Support and pro-actively plan for urban consolidation and redevelopment (including through increases in permissible residential density) in existing urban areas, especially in areas close to the Busselton City Centre, Dunsborough Town Centre and other activity centres identified in the activity centre framework. Support other proposals for redevelopment/consolidation (including through increases in permissible residential density) in existing urban areas, or for increases in planned development density in urban growth areas, especially in close proximity to activity centres or high amenity areas, such as in coastal locations, adjacent to open space, or which are close to significant community facilities. Planning for consolidation should have regard to Special Character Areas, amenity, streetscape and Western Ringtail Possum habitat.

 

Amendment 1 was consistent with the above, although it does not represent the complete implementation of that strategy.

 

Amendment 1

Council considered the recommendations described above in initiating Amendment 1 (other than the LPS; finalised after Amendment 1). The Council considered Amendment 1 twice after advertising, before and after a Special Electors Meeting called in relation to the Amendment. Some key information in relation to the land subject of the proposed motion is as follows:

1.         Correspondence was sent directly to close to 1,800 landowners, including…those within the Busselton city centre and Dunsborough town centre and those in residential areas proposed for, or abutting, the A74 and R80 areas recommended in the draft Omnibus Amendment.

2.         Dunsborough Town Centre (35 submissions):

·        4 in support of proposed Additional Use A74 and R80 coding areas over residential land;

·        1 request to be included into proposed Additional Use A74 and R80 coding areas;

·        15 objections to the proposed Additional Use A74 and R80 coding areas over residential land…

 

3.         Attachment C sets out the relevant discussion included in the first report considered by the Council after consultation (as there were no specific concerns identified by the Council after the first report, further information on this aspect of Amendment 1 was not provided in the second report).

 

It is apparent that a number of those that made submissions on the A74/R80 proposals were aware of the intended direction in terms of density and height controls, but it is acknowledged that it was not highlighted in the consultation material associated with Amendment 1.

 

Amendment 29

Subsequent to Amendment 1, a further Omnibus Amendment that affected the Dunsborough Town Centre was undertaken; Amendment 29. Amongst other things, Amendment 29 introduced a range of urban design controls for both the Busselton City Centre and Dunsborough Town Centre, addressing many of the recommendations of earlier documents for additional urban design guidance, although in the higher status form of the town planning scheme itself, rather than in the lower status form of a local planning policy, adopted pursuant to a local planning scheme. Those controls are set out in clause 4.21 of LPS21.

 

R-Codes / LPS21 height controls

The R-Codes have existed in various forms in Western Australia since the 1990’s. They have generally been ‘read-in’ to local government town planning schemes, and set out a wide range of controls relating to things like density, setbacks, overlooking and overshadowing. The R-Codes do not treat all residential land in exactly the same way, and identify an array of different ‘residential density codes’ that can be applied to suit the context – such as ‘R20’, ‘R60’ or ‘R80’.

 

Standard sets of controls apply to land identified under each coding on local government town planning scheme maps. Local governments can, though, make variations, either through provisions in their town planning scheme (such as clause 4.3 of LPS21) or, in some limited circumstances, through a special form of local planning policies, adopted pursuant to specific powers in the R-Codes. Note that the controls, whether they are set out in the R-Codes, in the town planning scheme, or in local planning policy, are generally not inflexible standards that cannot be varied.

 

LPS21 also contains generic height controls, in clause 4.8. Those generic height controls are 9 metres/two storeys, within 150m of the coast, or 12 metres/three storeys in most other areas; and in some instances those controls are inconsistent with those in the R-Codes.

 

The various residential density codings used to be a shorthand for the primary density controls in dwellings per hectare. For instance, ‘R40’ meant roughly 40 dwellings per hectare, or an average lot size of 250 square metres. That is still the case for development of Single Houses or Grouped Dwellings (houses or units), but is no longer the case for Multiple Dwellings (apartments), where the primary density control is now plot ratio. Plot ratio is the ratio of the total floor area of all floors of all buildings on a site relative to the ground area of the site. For instance, on a 1,000 square metre lot, if the plot ratio is 1.0, that means the total floor area of all floors can also be 1,000 square metres. That could consist of one single storey building of 1,000 square metres, or a two storey building with two floors of 500 square metres each. Some floorspace, such as common use corridors or lift shafts, is excluded from plot ratio calculations.

 

The image below illustrates the current ‘primary controls’ for multiple dwellings development:

 

 

Assessment against the R-Codes, however, does not turn entirely on assessment against quantitative standards. In particular in cases where quantitative standards are not met, an assessment against the ‘Element Objectives’, with those that relate to building height set out below:

 

Since Amendment 1 was gazetted there have been several rounds of changes to the R-Codes. That includes changes to generic height controls that move away from a focus on heights in metres, to a focus on the number of floors. It also includes an increase in the plot ratio control for land coded ‘R60’ from 0.7 to 0.8. The scope and detail of controls relating to medium density and/or mixed-use development have, in general, been increased since Amendment 1 was gazetted. To some degree, that reduced the need and potential scope for more detailed controls at the local level.

 

The inconsistency between the R-Codes primary controls for the R80 coding and the controls in LPS21 was identified in the ‘Responsible Authority Report’ (RAR) presented to the Regional Joint Development Assessment Panel (RJDAP) on the application for development approval which is understood to have been a key trigger for the proposed motion. If the controls in LPS21 were applied to the site, building height would be a consideration for any buildings over two storeys in height (as the site, at least in part, is within 150m of the coast).

 

Notwithstanding advice provided to Council in the past, it is fairly clear that, in the context, the R-Codes controls need to be given significant weight, as it would simply not be possible to develop a building at either an R60 or R80 density, at a height of only two storeys. Given the conflict between LPS21 and the R-Codes, there may be some discretion available to the RJDAP with respect to height. The RJDAP is not confined to the advice provided in the RAR prepared by the City; in particular specialist members are often highly qualified and experienced professional planners themselves. The RJDAP did defer consideration of the application, pending changes or further information in relation to several aspects of the proposed development, but not in relation to building height.

 

Dunsborough PSP

The land subject of the proposed motion is included within the area to be subject of the Dunsborough PSP. The work to prepare what is now referred to as a PSP followed a Council resolution on 14 February 2018 to support the preparation of what was then referred to as an ‘Activity Centre Plan’ (ACP), for the Dunsborough Town Centre.

 

The report considered by the Council before making that decision set out that:

The primary focus of the ACP will be to address the following matters:

1.         Providing development standards for building design and servicing:

a.         Special provisions and/or standards based on the desired streetscape (e.g. potentially by streetscape type as per approach for Busselton in LPP 4A). This includes consideration of specified controls for vertical zoning of land use, building setbacks, awnings/ verandas, façade/ frontage, crossovers, landmark features, etc.

b.        Special provisions or standards relating to the transition between land use areas, zones and public reserves (e.g. setbacks between land zoned as Business RAC-3, Residential R80/A74 and Residential R15);

c.         Potential identification of specialised precincts:

i.          By land use types, and means to facilitate their development;

ii.         By building design, via specific design/ architectural guidance.

2.         Outlining future road and streetscape design (at a conceptual/ strategic level) and the integration of transport infrastructure:

a.         Potential road traffic and parking improvements, including public transport and cycling infrastructure (including the connection of Clark Street to Cape Naturaliste Road);

b.         Identify crossover restrictions and the preferred provision of parking associated with development (eg. on-site or cash-in-lieu);

c.         Pedestrian accessibility, network linkages and wayfinding, and means to provide for active and alternative modes of transport.

3.         Identifying future community infrastructure and servicing requirements, including the function and utilisation of publicly managed lands:

a.         Clark Street connection to Cape Naturaliste Rd and other strategic proposals;

b.        Strategic infrastructure projects, including land acquisitions and divestments;

c.         Proposed changes to the development and management of public lands, including open space, and place-making opportunities.

 

The purpose of a PSP (or ACP, under earlier terminology) is the coordination of the future subdivision, zoning and development of the affected area. Where a PSP is under preparation, it would generally be expected that zoning changes, such as those set out in the proposed motion, would not be advanced ahead of the PSP process.

 

City officers are currently drafting a Dunsborough PSP for formal consideration by the Council. If the Council elects to adopt a draft Dunsborough PSP, community consultation would then occur, followed by further Council consideration, and the making of a recommendation to the WAPC. If the PSP recommended zoning changes (or other changes to the town planning scheme), that would not ordinarily occur until after the PSP process had been completed. If the Council was minded to, though, it could conceivably run both processes in parallel, potentially reducing the total timeframe involved substantially.

 

The City has undertaken a number of background studies to inform development of the draft Dunsborough PSP, specifically a retail/economics study, a parking study and, more relevant to the proposed motion, an urban design assessment. The final assessment, which will inform, but does not direct, the draft Dunsborough PSP, is expected to be available in the next few weeks.

 

Officers do expect that, when the draft Dunsborough PSP is presented to the Council, it will include proposals to provide greater guidance around building height and bulk than those that are currently in place. The Council will also have an opportunity to propose additional or different controls at that time.

 

SWDRP

As part of a suite of measures to improve design, especially of medium or high density development, ‘design review panels’ have been established in WA in recent years. A ‘State Design Review Panel’ has been established for major proposals being assessed by the WAPC, and many Metropolitan local governments have also established panels. The aim is to obtain the input of independent design professionals as early as possible in the design process for a new project. The City is currently working with other South West local governments, in particular the City of Bunbury and Shire of Augusta-Margaret River, with the aim of establishing a ‘South West Design Review Panel’.

 

Conclusion

It is considered that additional design guidance and control is required for both the subject land and the Dunsborough Town Centre area more broadly. It is, however, considered that the proposed motion is ad hoc, would not make a significant contribution to improving design outcomes, and would actually slow down the process of putting that additional guidance in place. It also considered that, whilst there are clearly community concerns around denser and/or higher development occurring in and around Dunsborough Town Centre, support for development of that kind in a broad sense is clearly set out in the planning framework.


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10 February 2021

18.1

Attachment a

Scheme Amendment Map

 


Council

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18.1

Attachment b

Dunsborough Town Centre Conceptual Plan

 


Council

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18.1

Attachment c

Extract of March 2016 Special Council Meeting

 



 

 

 


Council                                                                                      249                                                             10 February 2021

19.             urgent business

Nil

 

20.             Confidential Reports  

Nil

 

21.             Closure

The Presiding Member closed the meeting at 6.13pm.

 

 

 

THESE MINUTES CONSISTING OF PAGES 1 TO 251 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 24 February 2021.

DATE:____________________ PRESIDING MEMBER:________________________________