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

CITY OF BUSSELTON

MINUTES FOR THE Policy and Legislation Committee MEETING HELD ON 28 April 2021

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening, ACKNOWLEDGEMENT OF COUNTRY and Announcement of Visitors. 2

2....... Attendance. 2

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

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

6....... Reports. 3

6.1          PROPOSED SCHEME AMENDMENT NO. 49 (WESTERN RINGTAIL POSSUM HABITAT PROTECTION SPECIAL CONTROL AREA) & PROPOSED LOCAL PLANNING POLICY (LPP XX : WESTERN RINGTAIL POSSUM HABITAT PROTECTION AREA) - CONSIDERATION FOR INITIATION FOR ADVERTISING.. 3

5....... Confirmation and Receipt Of Minutes. 54

5.1          Minutes of the Policy and Legislation Committee Meeting held 24 February 2021. 54

6....... Reports. 55

6.3          SOUTH WEST DESIGN REVIEW PANEL AND PROPOSED LOCAL PLANNING POLICY - DESIGN REVIEW... 55

6.2          PROPOSED COUNCIL POLICY: INVESTIGATION OF ALLEGED BREACHES OF BEHAVIOUR. 63

7....... General Discussion Items. 74

7.1          HOLIDAY HOMES REGULATION REVIEW... 74

8....... Next Meeting Date. 111

9....... Closure. 111

 


Policy and Legislation Committee                                  6                                                                        28 April 2021

MINUTES

 

MINUTES OF Policy and Legislation Committee HELD IN THE Committee Room, Administration Building, Southern Drive, Busselton, ON 28 April 2021 AT 10.00am.

 

1.               Declaration of Opening, ACKNOWLEDGEMENT OF COUNTRY and Announcement of Visitors

The Presiding Member opened the meeting at 10.06am.

 

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 Ross Paine

 

Cr Grant Henley

Cr Kate Cox

Cr Kelly Hick

Cr Lyndon Miles

 

Officers:

 

Mr Mike Archer, Chief Executive Officer

Mr Tony Nottle, Director, Finance and Corporate Services

Mr Paul Needham, Director, Planning and Development Services

Ms Lee Reddell, Manager, Development Services

Mrs Emma Heys, Governance Coordinator

Ms Briony McGinty, Legal Officer

Ms Joanna Wilkinson, Planning Officer

Ms Melissa Egan, Governance Officer

 

Apologies:

 

Nil

 

3.               Public Question Time

Nil

 

4.               Disclosure Of Interests

Cr Paine declared a financial (indirect) interest in Item 6.1 ‘Proposed Scheme Amendment No. 49 (Western Ringtail Possum Habitat Protection Special Control Area) & Proposed Local Planning Policy (LPP XX : Western Ringtail Possum Habitat Protection Area) - Consideration For Initiation For Advertising’.

 

10.13am:      At this time, Cr Paine left the meeting and Cr Hick assumed the Chair.

Cr Henley, Cr Cox, Mr Needham, Ms Reddell and Ms Wilkinson declared financial (indirect) interests in Item 6.1 ‘Proposed Scheme Amendment No. 49 (Western Ringtail Possum Habitat Protection Special Control Area) & Proposed Local Planning Policy (LPP XX : Western Ringtail Possum Habitat Protection Area) - Consideration For Initiation For Advertising’.

 

10.14am:      At this time, Cr Henley, Cr Cox, Mr Needham, Ms Reddell and Ms Wilkinson left the meeting.

6.               Reports

6.1             PROPOSED SCHEME AMENDMENT NO. 49 (WESTERN RINGTAIL POSSUM HABITAT PROTECTION SPECIAL CONTROL AREA) & PROPOSED LOCAL PLANNING POLICY (LPP XX : WESTERN RINGTAIL POSSUM HABITAT PROTECTION AREA) - CONSIDERATION FOR INITIATION FOR ADVERTISING

STRATEGIC GOAL

3. ENVIRONMENT Valued, conserved and enjoyed

STRATEGIC OBJECTIVE

3.1 Development is managed sustainably and our environment valued.

SUBJECT INDEX

Local Planning Schemes and Amendments

BUSINESS UNIT

Strategic Planning

REPORTING OFFICER

Planning Officer - Joanna Wilkinson

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

NATURE OF DECISION

Legislative: to adopt legislative documents e.g. local laws, local planning schemes, local planning policies

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Dunsborough - Existing Zoning

Attachment b    Dunsborough - Proposed Zoning

Attachment c    West Busselton - Existing Zoning

Attachment d   West Busselton - Proposed Zoning

Attachment e    East Busselton - Existing Zoning

Attachment f    East Busselton - Proposed Zoning

Attachment g   LPP XX WRP Habitat Protection Area

Attachment h   WRP Working Group Directions Paper  

 

DISCLOSURE OF INTEREST

Date

28 April 2021

Meeting

Policy and Legislation Committee

Name/Position

Cr Ross Paine, Councillor

Item No./Subject

Item 6.1 ‘Proposed Scheme Amendment No. 49 (Western Ringtail Possum Habitat Protection Special Control Area) & Proposed Local Planning Policy (LPP XX : Western Ringtail Possum Habitat Protection Area) - Consideration For Initiation For Advertising’.

Type of Interest

Financial Interest (Indirect)

Nature of Interest

I own a property which is located inside the affected area.

 


 

DISCLOSURE OF INTEREST

Date

28 April 2021

Meeting

Policy and Legislation Committee

Name/Position

Cr Grant Henley, Mayor

Item No./Subject

Item 6.1 ‘Proposed Scheme Amendment No. 49 (Western Ringtail Possum Habitat Protection Special Control Area) & Proposed Local Planning Policy (LPP XX : Western Ringtail Possum Habitat Protection Area) - Consideration For Initiation For Advertising’.

Type of Interest

Financial Interest (Indirect)

Nature of Interest

I own a property which is located inside the affected area.

 

DISCLOSURE OF INTEREST

Date

28 April 2021

Meeting

Policy and Legislation Committee

Name/Position

Cr Kate Cox, Councillor

Item No./Subject

Item 6.1 ‘Proposed Scheme Amendment No. 49 (Western Ringtail Possum Habitat Protection Special Control Area) & Proposed Local Planning Policy (LPP XX : Western Ringtail Possum Habitat Protection Area) - Consideration For Initiation For Advertising’.

Type of Interest

Financial Interest (Indirect)

Nature of Interest

I own a property which is located inside the affected area.

 

DISCLOSURE OF INTEREST

Date

28 April 2021

Meeting

Policy and Legislation Committee

Name/Position

Mr Paul Needham, Director Planning and Development Services

Item No./Subject

Item 6.1 ‘Proposed Scheme Amendment No. 49 (Western Ringtail Possum Habitat Protection Special Control Area) & Proposed Local Planning Policy (LPP XX : Western Ringtail Possum Habitat Protection Area) - Consideration For Initiation For Advertising’.

Type of Interest

Financial Interest (Indirect)

Nature of Interest

I own a property which is located inside the affected area.

 

DISCLOSURE OF INTEREST

Date

28 April 2021

Meeting

Policy and Legislation Committee

Name/Position

Ms Joanna Wilkinson, Planning Officer

Item No./Subject

Item 6.1 ‘Proposed Scheme Amendment No. 49 (Western Ringtail Possum Habitat Protection Special Control Area) & Proposed Local Planning Policy (LPP XX : Western Ringtail Possum Habitat Protection Area) - Consideration For Initiation For Advertising’.

Type of Interest

Financial Interest (Indirect)

Nature of Interest

I own a property which is located inside the affected area.

 


 


Committee RECOMMENDATION and Officer Recommendation

                                    Moved Councillor K Hick, seconded Councillor L Miles

That the Council resolves to:

I.       In pursuance of the Planning and Development (Local Planning Schemes) Regulations 2015, initiate Amendment No. 49 to the City of Busselton Local Planning Scheme No. 21 for community consultation, for the purposes of:

 

1.         Amending Part 5 “Special Control Areas” by inserting new clause 5.15 as follows –

 

5.15          WESTERN RINGTAIL POSSUM HABITAT PROTECTION AREA

 

5.15.1       PURPOSE

 

The purpose of this special control area is to designate an area that is known to include trees of the species WA Peppermint which provide core habitat for the critically endangered Western Ringtail Possum, and to assist in the protection and enhancement of this habitat.

 

5.15.2     OBJECTIVES

 

The objectives of this special control area are to –

 

(a)       Provide for site planning that maximises retention of existing mature and healthy WA Peppermint on affected sites, and protects the ongoing health of existing WA Peppermint trees on adjoining sites and road reserves.

 

(b)      Provide a framework so that the protection of Western Ringtail Possum habitat is given high regard in decision-making.

 

(c)       Provide measures to offset the removal of mature and healthy WA Peppermint, where removal is approved.

 

(d)      Support the continuing and ongoing consolidation and expansion of urban development, consistent with the aims of this Scheme, and the objectives of the zones which apply to any affected site.

 

5.15.3     DEFINITIONS

 

For the purposes of clause 5.15, the meaning of terms used are as follows –

 

 

“LPP No. XX” refers to the City’s Western Ringtail Possum Habitat Protection Area Policy (as amended).

 

“offset planting” means the planting of replacement WA Peppermint to offset the loss of such vegetation that has been approved for removal.

 

“removal” means the pruning, lopping, transplanting or root removal of WA Peppermint vegetation.

 

“WA Peppermint” means all vegetative parts of the tree species Agonis flexuosa including canopy, trunks, branches, and root system.

5.15.4           PROVISIONS

 

(a)       The following provisions apply to all land shown on the Scheme Map as being within the “Western Ringtail Possum Habitat Protection Area” special control area.

 

(b)      There shall be no removal of WA Peppermint without the prior development approval of the local government, where:

(i)        a tree has a trunk diameter of 100mm or greater when measured at 1.4 metres above ground level (see LPP No. XX); or

(ii)       removal exceeds a canopy area of 50m² in any 12 month period (50m² is approx. 7m x 7m); or

(iii)     there is an impact on roots or canopy in a tree protection zone, as described in LPP No. XX.

(c)       In consideration of an application for development approval, the local government may vary site and development requirements to facilitate the preservation of WA Peppermint in accordance with clause 4.5 of the Scheme and the approved R-Code variations within LPP No. XX.

 

(d)      Development approval for the removal of the WA Peppermint may be granted where the local government is satisfied that the applicant has demonstrated that:

(i)        it is not possible to avoid removal; and

(ii)       all reasonable steps to minimise removal are being taken.

 

(e)      In granting development approval, the local government may apply conditions that require one or more of the following measures:

(i)        Retention of WA Peppermint, whereby a tree protection plan shall be prepared in accordance with LPP No. XX;

(ii)       Offset planting of WA Peppermint trees in accordance with guidelines and planting rates specified in LPP No. XX;

(iii)     Payment in lieu of offset planting, in accordance with the rates specified in LPP No. XX;

 

(iv)      A Notification, pursuant to Section 70A of the Transfer of Land Act 1893, to be placed on the Certificate(s) of Title advising that there is a presumption against removal of WA Peppermint without the prior development approval of the local government, in accordance with the relevant provisions of this Scheme.

 

(f)       Where the proposed removal has been assessed and approved under State or Federal environmental legislation, then the provisions of this special control area do not apply.

 

 

 

 

 

(g)       The removal of WA Peppermint that is dead, dying or poses a hazard to property or life, or is required to meet bushfire management requirements, is exempt from the requirements of sub-clauses 5.15.4 (b) - (e). The local government may require that the person responsible for the removal demonstrate that it was necessary for this reason.

 

2.         Modifying clause 5.1.1 “Operation of Special Control Areas” by including a new area – “Western Ringtail Possum Habitat Protection Area” after the Drive-Through Facility Control Area as listed.

 

II.       Amend the Scheme Map by identifying “Western Ringtail Possum Habitat Protection Area” as shown on the Scheme amendment map and illustrated at Attachments B, D and F.

 

III.      Pursuant to Regulation 35 (2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), determine that Amendment No. 49 is a standard amendment in accordance with r. 34 of the Regulations as it is an amendment that is consistent with a local planning strategy for the scheme that has been endorsed by the Commission.

 

IV.      Note that, as the 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 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 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 Amendment is to be subject to formal environmental assessment, this assessment is to be prepared prior to advertising of the Amendment.

 

V.       Initiate for the purpose of public consultation a new Local Planning Policy – LPP XX: Western Ringtail Possum Habitat Protection Area, as set out at Attachment G, by advertising the Local Planning Policy in accordance with clause 4 of Part 2 of Schedule 2 – Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015.

LAPSED FOR WANT OF A QUORUM

 

EXECUTIVE SUMMARY

Council is asked to consider initiating Scheme Amendment No. 49 which proposes a new special control area ‘Western Ringtail Possum Habitat Protection Area’, and a new Local Planning Policy ‘LPP XX: Western Ringtail Possum Habitat Protection Area’ (LPP XX). Existing zoning is illustrated at Attachments A, C and E.

 

Amendment No. 49 and LPP XX will be bound together in practice, meaning that the policy will provide operational detail for the implementation of the Scheme amendment.

 

Amendment No. 49 and LPP XX are recommended to be adopted for the purposes of public advertising.

 

BACKGROUND

During 2006/07 Councillors and staff, in conjunction with the Federal Department of Environment, Water, Heritage and Arts, began thinking about how the habitat of Pseudocheirus occidentalis or Western Ringtail Possum (WRP) in the district might better be protected. Between 2008 and 2010 various Council actions included specific items within the 2008/09 financial year budget, the 2008/09 Corporate Plan, and the 2010-2020 Strategic Plan. The first formal Council decision (C0905/186) to support these actions was made at its meeting of 27 May 2009:

That the Council requires the CEO to consider how protection can be provided for individual peppermint trees in the area designated as the core habitat for the Western Ringtail Possum as prescribed by the Federal Department of Environment, Water, Heritage and Arts. That this consideration be directed to the development of a policy and/or Town Planning Scheme amendment that would require where possible the retention of individual and/or groups of peppermint trees, particularly those that are not afforded protection under existing DEC controls. The Policy and/or Town Planning Scheme Amendment mechanism be reported back with the draft content as part of either the next scheduled Policy (Planning) Review of the Scheduled Town Planning Scheme Review.

 

A WRP Habitat Protection Plan was completed in November 2009 which highlighted a number of elements affecting WRP habitat, as well as draft Scheme provisions to protect the habitat. On 25 May 2011, Council resolved (C1105/170) to note the WRP Habitat Protection Plan and support its use as a background document to assist with further planning and management of issues relating to WRP habitat; and to amend Town Planning Scheme No. 20 (TPS 20) by introducing a WRP habitat protection special control area. This lead to a Council resolution (C1212/357) on 12 December 2012 to adopt Amendment No. 146 to TPS 20, which proposed the introduction of a WRP Habitat Protection Area.

 

On 30 July 2014, following assessment by the Western Australian Planning Commission (WAPC), the City received notification that Amendment No. 146 had been refused. The reasons for refusal were:

(i)        The WAPC does not support provisions which would effectively ‘up-code’ individual development sites, beyond that which could be achieved under the prescribed R-Code. Such an approach would be contrary to the expectations of the local community and inconsistent with orderly planning.

(ii)       The provisions have a primary focus on cash or planting offsets rather than mechanisms to ensure flexible application of development standards to achieve colocation of habitat trees and development on the same site.

(iii)      Provision 6(b) would appear to incentivise the removal of vegetation, contrary to the intent of the provisions.

(iv)      The modifications necessary to suitably amend the proposal would be time consuming, may warrant advertisement of the Amendment and as such would jeopardise the timely introduction of Scheme 21.

(v)       The proposal provisions are unnecessarily complex and would be subject to misinterpretation by the community.

 

Each of these reasons has been taken into consideration during the drafting of this Amendment, with more detail provided in the ‘Officer Comment’ section of this report.

 

During 2016/2017, the conservation status of WRP was elevated at both State and Federal level to Critically Endangered, and this provided impetus for Council to recommence measures relating to WRP habitat protection through the Scheme.


 

At its meeting of 10 May 2017, the Council resolved (C1705/105):   

That the Council support the formation by the CEO of a ‘Western Ringtail Possum Working Group’, with the membership and role of the Group to be as follows:

1.         Membership - Interested Councillors and relevant staff; and

2.         Role –

a)        Researching and receiving briefings from stakeholders on WRP issues;

b)        Forming a view on what the City’s role and approach to WRP issues should be, both in terms of actions by the City itself, but also in terms of advocating for action at State and/or Federal level; and

c)         Briefing and seeking Council support for the Group’s findings and proposed direction.

 

Subsequently, the Western Ringtail Possum Working Group (WRPWG) was formed and discussions were held with key stakeholders, resulting in the development of a Directions Paper (Attachment G). The intent of this Directions Paper is to form the basis for a WRP habitat protection strategy, and relevant to this proposal, key findings of the Directions Paper included:

1.         Habitat in and around the Busselton and Dunsborough urban areas is likely to be important to the future survival of the WRP as a species.

2.         Whilst WRP do feed on other plant species, mature WA Peppermint trees (Agonis Flexuosa) are important for providing food and shelter for WRP.

3.         The current approach to protection and enhancement of WRP habitat, both in City of Busselton managed reserves and private land, is clearly insufficient to protect against degradation through clearing and development in a way that will critically affect the chances of WRP surviving on the Busselton-Dunsborough coastal strip.

 

At its meeting on 10 April 2019, the Council resolved (C1904/068) to adopt the WRPWG Directions Paper for the purpose of community consultation. At the same meeting, Council also resolved to initiate Amendment No. 42 to the Scheme for the purpose of amending the Scheme text by inserting a new clause within ‘Part 5 – Special Control Areas’ that would, if approved by the WAPC, create a ‘Western Ringtail Possum Habitat Protection Area’.

 

Proposed Amendment No. 42 was considered to be a ‘complex’ amendment, pursuant to r. 34 of the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), because it was not addressed by any local planning strategy. As a result, r. 37 (4) required that the WAPC examine the proposal and advise if any changes to the documents were required prior to public advertising. A request to advertise proposed Amendment No. 42 was lodged with the WAPC on 26 September 2019.

 

This led to a lengthy period of examination by Department of Planning, Lands and Heritage (DPLH) officers, on behalf of the WAPC, whereby various changes were discussed. During this time DPLH officers also requested that City officers draft a complementary local planning policy to provide operational detail for the implementation of the proposed Amendment. On 23 October 2020 the WAPC formally advised that Amendment No. 42 was suitable to be advertised.

 

During the time that DPLH were examining Amendment No. 42, the City of Busselton Local Planning Strategy 2019 (LPS) was endorsed by the WAPC (13 March 2020). Where previously it had been found that Amendment No. 42 was a ‘complex’ amendment because it hadn’t been addressed by any local planning strategy, the LPS addresses the protection of WRP habitat as set out in the ‘Relevant Plans and Policies’ section below.

 

In part due to the change in the planning framework, and in part due to the substantial changes that have occurred to proposed Amendment No. 42 as a result of examination by DPLH, City officers believe it is prudent to discontinue with Amendment No. 42. Given that officers are in the early stages of drafting a new local planning scheme, it is apparent that Amendment No. 42 will, without any further action, simply ‘fall away’. It is proposed that a new amendment, Amendment No. 49, be initiated by Council, for the purpose of public advertising. Amendment 49 responds to the current planning framework as a ‘standard’ amendment, and seeks to address the changes suggested during examination by DPLH.

 

Given that LPP XX has been prepared and also examined DPLH officers, it is also proposed that this LPP be initiated by Council and advertised concurrently with Amendment No. 49. Further details of the LPP and Amendment are outlined below.

OFFICER COMMENT

The WRP is unique to and was once widespread across much of the south west of Western Australia. Since European settlement, land clearing and other environmental changes have led to the species now being largely restricted to areas of the south and west coasts between Australind and Albany. The most important habitats are near-coastal woodlands and forests located on the southern Swan Coastal Plain between Bunbury and Dunsborough, and the WA Peppermint tree has been identified as the principle habitat and food source for WRP. In particular, the core habitat for much of the remaining WRP population is the narrow band of WA Peppermint forest that extends in a broken chain from the eastern edge of the Dunsborough urban area to the southern edge of the Bunbury urban area, as well as older parts of Bunbury, Busselton and Dunsborough urban areas.

 

WRP are identified as Critically Endangered under both State and Commonwealth environmental legislation. Statutory controls set out under the State and Commonwealth framework provide a reasonable level of protection for WRP and WRP habitat in rural and natural areas, as well as in areas of new urban development, from extensive clearing.

 

In older urban areas, including areas that are experiencing pressures for redevelopment (zoned and considered necessary for increased density residential development, or identified for urban consolidation under the Local Planning Strategy), much of the habitat consists of individual or small stands of WA Peppermint trees, the clearing of which can currently occur without City, State or Commonwealth approval.

 

Whilst the clearing of individual trees or small stands of trees in these areas may not, in any one instance, have significant impact on WRP as a species, the cumulative impact of such clearing is significant. These areas represent a large proportion of the core habitat for the WRP, and their protection and enhancement as WRP habitat has been identified as vital to ensuring the long-term survival of the species.

 

Key recommendations arising from both the 2009 WRP Habitat Protection Plan and the 2019 Directions Paper are the protection of WRP habitat on private land, particularly in the urban areas of Busselton and Dunsborough.

 

Furthermore, the broader benefit of preserving or establishing an ‘urban canopy’ has emerged as an important principle to be considered in urban planning. This is reflected in recent State planning documents such as State Planning Policy 7.3 Residential Design Codes (R-Codes) Volume Two – Apartments, and the State Administrative Tribunal decision Kemstone Investments Pty Ltd and City of Joondalup [2020] WASAT 115. The SAT presiding member found that the applicant had not complied with the acceptable outcome to provide adequate deep soil area for two medium trees that would, in the long term, improve urban tree canopy.

 

It is considered that the need to preserve the localised habitat of the Critically Endangered WRP, provides a sound basis to warrant the introduction of new Scheme controls. Additionally, the introduction of controls to preserve this habitat is consistent with the broader planning principle to preserve and expand urban tree canopy.

 

The two key elements of this proposal are the introduction of Amendment No. 49 (the Amendment), and the introduction of LPP XX. Each of these is discussed below.

 

Amendment No. 49

Through this Amendment, it is proposed to introduce a special control area (SCA) to overcome deficits in the current clearing controls.

 

The area included in the SCA has been based on the Significant Impact Guidelines for the Vulnerable Western Ringtail Possum (Pseudocheirus occidentalis) in the Southern Swan Coastal Plain, Western Australia (the Guidelines) which identifies important habitat and feeding areas, dividing the areas into the three key categories of ‘Core Habitat’, ‘Primary Corridors’ and ‘Supporting Habitat’. Within the District, ‘Core Habitat’ and ‘Primary Corridors’ tend to be centralised around residential areas of Busselton and along the coast between Busselton and Dunsborough where, in most instances, there are currently no controls over the small-scale removal of vegetation.

 

Some areas indicated as important areas for WRP within the Guidelines have been excluded from the SCA. These include residential areas with density coding of R5 or less, and newer residential subdivisions. The reasons for exclusion are:

·        Residential areas with a density coding of R5 or less are subject to existing Scheme provisions that necessitate a development application being submitted and approved prior to the clearing of vegetation.

·        Newer residential subdivisions, for example Vasse, Dunsborough Lakes and Old Broadwater Farm, are generally devoid of well-established native trees on private land. If clearing approvals are required as part of the subdivision process then these are obtained from the necessary agencies. It is considered that there is no requirement at present for these areas to be included in the SCA, however this may be reviewed in the future when vegetation becomes better established.

                               

While the WRP Habitat Protection Plan found that many species of native vegetation can provide habitat for WRP, the most significant type of WRP habitat vegetation within the District is the WA Peppermint tree (Agonis flexuosa). The proposed SCA aims to provide for site planning that will maximise the retention of existing mature and healthy WA Peppermint trees, and to protect the health of WA Peppermint trees on adjoining sites and road reserves. The Amendment would require development approval for any proposed removal of WA Peppermint vegetation where:

(i)        a tree has trunk diameter of 100mm or greater when measured at 1.4 metres above ground level; or

(ii)       removal exceeds a canopy area of 50m² in any 12 month period; or

(iii)      there is an impact on roots or canopy in a tree protection zone.

 

These criteria have been developed with the intention to allow the removal of small individual trees and/or pruning without requiring development approval, however it would capture the removal of a single mature tree or greater which may provide viable WRP habitat conditions. It is proposed that the maximum area of canopy cleared before a development application is required would be determined cumulative over a 12 month period. This would prevent multiple rounds of small scale clearing and/or pruning over a short period and is consistent with the timeframe set under the clearing regulations for large scale clearing.

 

In order to provide incentive for the retention of vegetation, the Amendment has been drafted so that some site and development requirements may be varied in accordance with the R-Codes (Volume 1) design element variations detailed in LPP XX, or for all non-residential zones in accordance with clause 4.5 of the Scheme. It should be noted that Amendment 42 was deliberately broad to allow for the variation of a range of design elements, however during their examination of the proposal DPLH officers suggested that the proposed variations to the R-Codes (Volume 1) be specified in a local planning policy. When drafting these variations, a factor considered was one of the reasons for refusal of Amendment No. 146 to TPS 20, i.e. because it proposed to effectively ‘up-code’ individual sites by providing density bonuses (R-Codes Volume 1, clause 5.1.1 Site area). This proposal does not include a variation to density controls, and the variations that are proposed within the LPP are discussed in further detail below.

 

While the protection of WRP habitat is the primary purpose of this proposal, it is acknowledged that retention of vegetation is not always possible. Therefore, the Amendment proposes that where a proponent is able to demonstrate that they are unable to retain WA Peppermint tree vegetation within the development site, they can either carry out offset planting within the site or on the adjoining road reserve. If that is not possible, a payment in lieu of offset planting may be required.

 

Furthermore, the Amendment also aims to support the continuing and ongoing consolidation and expansion of urban development, consistent with the Local Planning Strategy. This is achieved through acknowledging that sites should have the ability to be developed for the purpose for which they were created, and that there should be a partial exemption for sites that are previously undeveloped/vacant. Partial exemptions are discussed in further detail below.

 

Finally, the Amendment sets out the measures that may be required if development approval is granted for the removal of WRP habitat. LPP XX provides the operational detail for the implementation of these measures.

 

Draft Local Planning Policy XX

The operational measures that are addressed within LPP XX include variations to R-Codes (Volume 1) development requirements, partial exemptions for vacant lots, offset planting requirements, payment in lieu calculations, and additional supporting information requirements. These are discussed below under appropriate sub-headings.

 

Variations to R-Code Development Requirements

LPP XX clearly sets out the R-Codes (Volume 1) design elements and the deemed-to-comply variations that may be considered in order to facilitate the retention of WRP habitat. Part 7.3.1 of the R-Codes (Volume 1) sets out which of these design elements may be varied with local government consent; elements proposed within the LPP include 5.1.2 Street setback, 5.1.3 Lot boundary setbacks, and 5.2.1 Setbacks of garages and carports.

 

Part 7.3.2 of the R-Codes (Volume 1) provides that the local government may, with WAPC approval, amend other deemed-to-comply provisions by means of the local planning policy, where it can be demonstrated that the proposal:

·        is warranted due to a specific need related to that particular locality or region;

·        is consistent with the objectives and design principles of the R-Codes; and

·        can be properly implemented and audited by the decision-maker as part of the ongoing building approval process.

 


 

It is proposed that the deemed-to-comply provisions of the following design elements, requiring WAPC approval, be varied in order to facilitate the retention of WRP habitat:

 

Design Element

R-Code Deemed-to-Comply

Proposed Deemed-to-Comply

5.3.3 Parking

C3.1 On-site car parking spaces required for a 2+ bedroom single house or grouped dwelling: 2

On-site car parking spaces required for a 2+ bedroom single house or grouped dwelling: 1

C3.2 On-site visitor car parking spaces for grouped and multiple dwellings: 1 space for each 4 dwellings.

On-site visitor car parking spaces for grouped and multiple dwellings: 1 space for each 6 dwellings.

5.3.5 Vehicular Access

C5.1 Access to on-site car parking spaces may be provided:

·    where available, from a right-of-way;

·    from a secondary street where no right-of-way exists;

·    from the primary street frontage where no secondary street or right-of-way exists.

All dwellings:

Access to on-site car parking spaces may be provided from a primary street where a secondary street exists.

C5.5 Driveways for multiple and grouped dwellings where the number of dwellings is five or more, shall be:

·    a minimum width of 4m; and

·    designed to allow vehicles to pass in opposite directions at one or more points.

Grouped and multiple dwellings where the number of dwelling is five or more:

·    driveways may be reduced to no less than 3m, and passing bays or similar are to be provided.

 

As discussed at the beginning of this section, the proposed variations are warranted due to specific need related to the locality/region. The proposed variations are not profoundly different from the current standards, and therefore the consistency with objectives and design principles of the R-Codes can be assessed on a case by case basis, at the time when development applications are submitted. Should the variations be approved by the WAPC as part of this proposal, and later by the local government as part of a development application, then implementation and audit processes would be consistent with current practices.

 

Partial Exemption for Vacant Lots

The proposed partial exemption area will conform to the percentage of a site that is not required for open space (i.e. the developable area) as provided for in Part 5.1.4 of the R-Codes (Volume 1). It may be applied where the site of the proposal is zoned Residential and has not previously been developed, or if the site is vacant and WRP habitat vegetation exceeds the R-Code open space requirement (this latter measure allows for sites where demolition of building may occur prior to an application for a new building).

The LPP includes an appendix with an example calculation showing how the partial exemption may be applied.

 

Offset Planting Requirement

The LPP requires that one tree should be planted for each 20m² of canopy removed. This calculation is based on the requirements set out in Table 3.3a of Part 3.3 of the R-Codes (Volume 2), where tree provision requirements aim to improve urban tree canopy in the long term.

 

The LPP also specifies an indicative pot size of 35 litres. A tree of this size will be approximately 1.5m tall at the time of planting, and is readily available from local suppliers. 35 litres is generally the pot size that will be purchased by the City when carrying out street tree planting.

 

Furthermore, guidelines have been provided in regard to the separation distance between offset plants and between buildings. This is a proactive measure to allow for the best conditions for long-term survival of the offset plant.

 

Payment in Lieu Calculations

It is acknowledged that some sites may not have sufficient area to fulfil offset planting requirements, and therefore it is proposed that the balance be provided as a payment in lieu of offset planting.

 

A standard fee is prescribed, and an appendix to the LPP provides detail as to how the fee has been calculated. This calculation includes the actual contract and material costs, as well as administration and in-kind costs, associated with the City’s 2019 street tree planting program.

 

This calculation demonstrates that the cost of planting one 35L tree is approximately $200. Given the proposal that one offset tree should be required per 20m² of canopy removed, it is therefore proposed that the payment in lieu amount is set at $10 per one square metre of canopy removed.

 

Additional Supporting Information Requirements

The primary purpose of this proposal is to retain existing WRP habitat, and therefore a mechanism is included to ensure the survival of vegetation during construction. This mechanism is proposed through a tree protection plan, whereby the applicant would identify the tree protection zone (an area isolated from construction disturbance so the tree remains healthy) and accordingly put measures in place to protect this area.

 

A tree protection plan template is provided as an appendix to the LPP. This template has been drafted based on information derived from AS 4970 – 2009: Protection of trees on development sites.

Statutory Environment

The key statutory documents relevant to this proposal are:

·        Planning and Development Act 2005 and associated Regulations

·        Local Planning Scheme No. 21

·        Environmental Protection and Biodiversity Conservation Act 1999

·        Environmental Protection Act 1986

·        Biodiversity Conservation Act 2016

 

Each is discussed below under appropriate subheadings.

 


 

Planning and Development Act 2005 (WA) (‘PD Act’) and associated Regulations

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

 

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 for the reason set out in the ‘Officer Recommendation’ section of this report.

 

Clause 4 of Part 2 of Schedule 2 – Deemed Provisions for Local Planning Schemes of the Regulations, sets out the procedure for making a local planning policy.

 

Local Planning Scheme No. 21 (the Scheme)

Under the PD Act, the clearing of vegetation generally falls within the definition of ‘development’ and requires approval unless specifically exempted by a planning scheme. In the City’s Scheme, Part 6 sets out requirements for the development of land, and the clearing of vegetation is exempt from the requirement for development approval except where the development is located:

·        in a Coastal Management, Wetland, Landscape Value, or Floodway area;

·        in the Rural Residential, Conservation, Rural Landscape or Bushland Protection zones;

·        on land coded R2, R2.5 or R5;

·        on or over any land below the mean high water mark, or forming part of a watercourse;

·        on a public road or unzoned land.

 

The Amendment would change the areas of land that are exempt from development approval for the clearing of vegetation.

 

Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’)

Under the EPBC Act, in 2018 the conservation status of the WRP was elevated from ‘Endangered’ to ‘Critically Endangered’. The EPBC Act protects WRP habitat but is limited in its application to clearing controls which can have a “significant impact” on habitat environment. This term is not defined in the Act, however, the Significant Impact Guidelines for the Western Ringtail Possum (Pseudocheirus occidentalis) in the Southern Swan Coastal Plain, Western Australia (EPBC Act policy statement 3.10) does provide guidance on this matter. Most small-scale clearing in urban areas is not regulated under the EPBC Act.

 

Environmental Protection Act 1986 (WA) (‘EP Act’) and associated Regulations

The EP Act provides a legal framework for the State Government to protect the environment and regulate pollution. It sets out a range of different processes for doing this, including (relevant to this proposal) environmental impact assessments for planning scheme amendments and development proposals with the potential to cause significant environmental impact; as well as a permit system regulating the clearing of native vegetation. The EP Act is supplemented by a number of environmental protection policies and subsidiary pieces of legislation, including the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (Clearing Regulations).

 


 

The Clearing Regulations have the effect that, unless specifically exempted, a permit is required for the clearing or disruption of native vegetation (including, in many instances, regrowth or “intentionally planted vegetation”). There are no exemptions provided within identified ‘Environmentally Sensitively Areas’ (ESA) pursuant to the EP Act. This includes ‘Conservation Category Wetlands’ and the associated buffers and vegetation containing ‘Threatened Ecological Communities’ or ‘Declared Rare Flora’. Much of the City, including most of the urban area, however, is located outside an ESA. As such, clearing may be exempt from the need to obtain a permit, for purposes that include:

·        development of approved buildings;

·        establishment of fences;

·        collection of firewood for personal use by a landowner; or

·        fire and emergency management.

 

With the exception of the last of these, exempted clearing includes a maximum of 1.0 hectare per year per property and, as such, permits are not required for most (usually small scale) clearing of habitat within urban areas.

 

Biodiversity Conservation Act 2016 (WA, ‘BC Act’)

The BC Act came into practical effect from 1 January 2019, replacing the Wildlife Conservation Act 1950. The BC Act introduces new provisions for important biodiversity conservation matters that were not recognised in the previous Act, such as new protections for habitat critical to the survival of a ‘Threatened Species’ (including habitat conservation notices). Orders necessary to use those powers, however, have not yet been developed. As such, like its predecessor, the BC Act at present “protects the animal, but not its home”.

Relevant Plans and Policies

The key policies relevant to this proposal are:

·        City of Busselton Local Planning Strategy

·        State Planning Policy 2 –Environment and Natural Resources Policy

·        State Planning Policy 3.1 – The Residential Design Codes of WA

 

Each is discussed below under appropriate subheadings.

 

City of Busselton Local Planning Strategy (LPS)

The LPS broadly sets out the long-term planning direction for the whole of the district, and provides the strategic rationale for decisions related to the planning and development of the district. The LPS includes the following Themes and Strategies that are applicable to the Amendment.

 

Theme 4 ‘Environment, landscape and heritage’ includes the following strategy:

d)        Support the long-term survival of the District’s Western Ringtail Possum Population, especially the population within urban areas.

 

Theme 5 ‘Implementation and review’ includes the following strategy:

d)        Develop and implement integrated plans within 5 years of adoption of the strategy as follows –

(iv)      A Western Ringtail Possum habitat protection strategy, which provides for the long-term protection and enhancement of habitat, whilst also supporting the consolidation and expansion of urban development.

State Planning Policy 2: Environment and Natural Resources Policy (SPP 2)

SPP 2 must be given due regard by the WAPC and local government in the making of all planning decisions. SPP 2 sets out that planning schemes and decision-making should:

(ii)       Actively seek opportunities for improved environmental outcomes including support for development which provides for environmental restoration and enhancement.

(iii)      Protect significant natural… features, including sites and features significant as habitats…

(x)       Support conservation, protection and management of native remnant vegetation where possible to enhance… biodiversity, fauna habitat, landscape, amenity values and ecosystem function.

 

SPP 2, Part 5.5 Biodiversity, sets out that planning strategies, schemes and decision-making should:

(i)        Consider mechanisms to protect areas of high biodiversity and/or conservation value, including:

….

(d)      land containing Threatened Flora or Threatened Ecological Communities… or that which is habitat to Threatened Fauna.

(ii)       Seek to avoid or minimize any adverse impacts, directly or indirectly, on areas of high biodiversity or conservation value as a result of changes in land use or development.

(iv)      Safeguard and enhance linkages between terrestrial aquatic habitats which have become isolated, including the re-establishment of habitat corridors.

 

State Planning Policy 7.3: Residential Design Codes – Volumes 1 and 2 (R-Codes)

The Scheme adopts the standards for residential development established in the Residential Design Codes of Western Australia (R-Codes) subject to the modifications specified in Clause 4.3 of the Scheme. The incentive provisions referred to in this Amendment allow for consideration of discretions to the deemed-to-comply criteria of certain design elements of Volume 1 of the R-Codes.

Financial Implications

Financial implications associated with the recommendations of this report relate to implementation of additional clearing controls, which would likely increase the City’s planning assessment and enforcement workload.

Stakeholder Consultation

Consultation to Date

Following Council’s initiation of Amendment No. 42, DPLH officers (representing WAPC) were required to examine the proposal. As a result, DPLH officers suggested that City officers draft a complementary local planning policy to provide operational detail for the implementation of Amendment No. 42. The information exchanged during the examination period forms the basis of Amendment No. 49 and associated LPP XX.

 

Proposed Consultation

If the Council resolves to initiate the Amendment and LPP XX, the relevant documentation associated with the Amendment 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 Amendment document and associated Local Planning Policy XX will be advertised concurrently and for 42 days in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015 (the advertising period required for a standard amendment).

 

To facilitate advertising, the following actions will be undertaken:

·        Targeted emails to landowners within the proposed Special Control Area;

·        A notice on the City’s website, and a portal to be created using the City’s YourSay platform for the online lodgement of submissions;

·        Notices in the local newspaper and via social media; and

·        Information sessions with stakeholders and the community.

 

At its meeting on 10 April 2019, Council also resolved (C1904/068) to adopt the Western Ringtail Possum Working Group Directions Paper for the purpose of community consultation. That paper would also be advertised for 42 days alongside the Amendment and LPP.

Risk Assessment

The implementation of the officer recommendation will involve initiating the Amendment and LPP XX for referral to the EPA and, upon response from the EPA, advertising for the purpose of public consultation. No risks of a medium or greater level have been identified.

Options

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

1.         Resolve to seek further information before making a decision.

2.         Resolve to initiate the Amendment and/or LPP XX subject to identified modification(s), to be explained.

3.         Resolve to decline the initiation of the Amendment and LPP XX for advertising for reasons to be identified and explained.

CONCLUSION

The information contained within this report confirms that the Amendment and LPP XX are an appropriate outcome consistent with the orderly and proper planning of the City of Busselton and, as such, it is recommended that the Amendment and LPP XX be initiated for public consultation.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

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


Policy and Legislation Committee

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28 April 2021

6.1

Attachment a

Dunsborough - Existing Zoning

 


Policy and Legislation Committee

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28 April 2021

6.1

Attachment b

Dunsborough - Proposed Zoning

 


Policy and Legislation Committee

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28 April 2021

6.1

Attachment c

West Busselton - Existing Zoning

 


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28 April 2021

6.1

Attachment d

West Busselton - Proposed Zoning

 


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6.1

Attachment e

East Busselton - Existing Zoning

 


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6.1

Attachment f

East Busselton - Proposed Zoning

 


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6.1

Attachment g

LPP XX WRP Habitat Protection Area

 

















Policy and Legislation Committee

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6.1

Attachment h

WRP Working Group Directions Paper

 













 


Policy and Legislation Committee                                  60                                                                      28 April 2021

10.15am:       At this time, Cr Paine re-entered the meeting and resumed the Chair.

 

10.15am:      At this time, Cr Henley, Cr Cox, Mr Needham, Ms Reddell and Ms Wilkinson re-entered the meeting.

 

 

5.               Confirmation and Receipt Of Minutes

5.1             Minutes of the Policy and Legislation Committee Meeting held 24 February 2021

Committee Decision

PL2104/387            Moved Councillor G Henley, seconded Councillor K Cox

That the Minutes of the Policy and Legislation Committee Meeting held 24 February 2021 be confirmed as a true and correct record.

CARRIED 5/0

 


 

6.               Reports

6.3             SOUTH WEST DESIGN REVIEW PANEL AND PROPOSED LOCAL PLANNING POLICY - DESIGN REVIEW

STRATEGIC GOAL

2. PLACE AND SPACES Vibrant, attractive, affordable

STRATEGIC OBJECTIVE

2.3 Creative urban design that produces vibrant, mixed-use town centres and public spaces.

SUBJECT INDEX

Local Planning Policy

BUSINESS UNIT

Development Services

REPORTING OFFICER

Manager Development Services - Lee Reddell

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   Draft Design Review Policy  

 

Committee RECOMMENDATION and Officer Recommendation

PL2104/388            Moved Councillor G Henley, seconded Councillor K Cox

That the Council:

1.         Resolves to initiate for the purposes of public consultation a new Local Planning Policy ‘Design Review’ (Attachment A) by advertising the proposed policy in accordance with clause 4 of Part 2 of Schedule 2 - Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015.

 

2.         Authorises the Chief Executive Officer to enter a memorandum of understanding with other participating South West local governments for the operation and management of a South West Joint Design Review Panel.

 

3.         Consider allocating appropriate funding in the 2021/22 financial year budget to enable the establishment and operation of a South West Design Review Panel.

CARRIED 5/0

 

EXECUTIVE SUMMARY

Design Review Panels (DRPs) are groups of independent experts who advise on the design quality of a project or development proposal. DRPs have been operating in Australia for over 20 years and 80% of Perth’s metropolitan local governments have established a DRP, which are now reinforced through the State Government’s Design WA initiative. Officers have been working with other local authorities within the South West region to establish a South West Design Review Panel (SWDRP). A Memorandum of Understanding (MOU) and Terms of Reference (TOR) have been prepared by the participating local governments.

 

At this point in time, there is commitment from the following local governments:

•          City of Bunbury

•          Shire of Augusta Margaret River

•          Shire of Harvey

•          Shire of Collie

 


 

For design review to occur through the development assessment process, a Local Planning Policy (LPP) is required to:

1.         Establish a ‘head of power’, in creating a relationship between the development assessment and design review process;

2.         Outline the types of applications that will trigger design review; and

3.         Address fees and charges.

 

BACKGROUND

City officers have been in ongoing discussions with other South West local government planners to gauge support for a shared DRP. The advantages of a SWDRP are lower costs and a larger pool of experts to draw from, thus improving the potential pool of expertise and lowering the risk of conflict of interest.

 

In order for the SWDRP to function, an MOU has been drafted between the participating local governments. The MOU is an agreement between the parties to work together to establish and maintain a DRP. The MOU states that participating local governments will contribute equally to funding an Expression of Interest (EOI) process and ongoing member recruitment costs, after which the DRP will operate on a ‘user pays’ basis, where costs incurred presenting an item (such as panel member sitting fees) will be borne by the local government presenting an item.

 

Further operational guidance will be provided by way of the TOR document which sets out the role and stature of the DRP, governance, member appointment and responsibilities, remuneration, and meeting procedures. Importantly, the TOR refer to an LPP to establish the types of applications that will require design review, as well as a process around fees and charges. An LPP is advantageous as it can be tailored from place to place to recognise the differences in development scale and frequency between local authorities.

 

The Planning and Development (Local Planning Schemes) Regulations 2015 (Regulations) provide that LPPs may be prepared by a local government in respect of any matter relating to planning and development regulated through a local planning scheme (Scheme).

 

The intention of an LPP is to provide guidance to applicants/developers and the community in regard to the decision-making process, as well as to the local government when exercising discretion under a Scheme. An LPP must be consistent with the intent of the relevant Scheme provisions and cannot vary development standards or requirements set out in a Scheme or impose other mandatory requirements upon development.

 

LPPs are given due regard in the assessment of development applications and are listed as a “consideration of application by local government” when making determination of a development application under Schedule 2, clause 67 of the Regulations.

OFFICER COMMENT

Design review is an independent and impartial evaluation process through which a panel of experts on the built environment assesses the design of a proposal. DRPs can be used for development applications, major public works, structure plans, local development plans and design related local planning policies.

 

DRPs often contain a wide range of experience that can cover architecture, heritage, urban design, landscape architecture and planning. Their focus is principally on pre-lodgement advice, so that the DRP can influence the drafting of plans before the applicant is committed through fully worked up drawings.

 

State Planning Policy 7.0 Design of The Built Environment (SPP7.0) sets out the objectives, measures, principles and processes which apply to the design and assessment of built environment proposals through the Western Australian planning system. It also provides the overarching framework for a range of supporting State Planning Policies that provide design quality guidance for specific types of planning and development proposals. 

 

The WAPC’s Design Review Guide works with SPP7.0 to assist local governments with the establishment and operation of DRPs and supports consistency in the design review processes already in operation across the State.

 

SPP7.0 states that planning authorities, including local government, should establish or arrange access to design review processes to review:

·        complex planning proposals;

·        proposals identified as benefitting from design review; or

·        matters as set out in the Regulations or recommended in the Design Review Guide.

 

Of the 29 metropolitan local governments in Perth, 25 have established DRPs. There are no DPRs in regional WA at the present time. The SWDRP will be a first for the State. The Office for the Government Architect (OGA), the Department of Planning, Lands and Heritage and the South West Development Commission are all supportive of establishing the joint SWDRP.

 

Proposed Local Planning Policy

The LPP is proposed to achieve three things:

1.         establish a ‘head of power’, in creating a relationship between the development assessment and design review process;

2.         outline the types of applications that will require design review; and

3.         outline process on fees and charges.

 

As outlined above, the operational aspects of the DRP are dealt with through the MOU and TOR.  Council approval for these documents is not proposed for these documents given their operational nature but it is a recommendation of this agenda item that Council authorises the Chief Executive Officer to enter the MOU on behalf of the City for the operation and management of the SWDRP.

 

Under Part 3 of the Deemed Provisions of the Regulations, the City must have regard to an LPP in determining a development application, meaning the proposed LPP will provide a relationship between the development assessment and design review process.

 

Part 4.1(e) of the draft LPP establishes the DRP role in the development application process as follows:

e)         The Design Review Panel performs an advisory function and the decision maker shall give due regard to the panel’s advice. The Design Review Panel does not report on compliance with the Scheme or policies.

Part 4.2 of the draft LPP sets the threshold for the types of applications that are referred to the DRP. It is important to strike a balance on what matters require DRP review. The lower the threshold, the higher the number of meetings and therefore cost. Too high a threshold and matters which would have benefited from design review might be overlooked.

 


 

The threshold included in the draft LPP is provided below:

4.2       THRESHOLD

a)        The Design Review Process may apply to:

i)          All applications that meet the mandatory or optional requirement for Development Assessment Panels applications, where there is a design element that may impact on the character, appearance or streetscape of an area; or

ii)         Major development proposals where there is a design element that may have a significant impact on the character, appearance, or streetscape of an area at the discretion of the City; or

iii)        Any other planning proposal (e.g. Scheme Amendment, Structure Plan, Precinct Plan, Local Planning Policy, Local Development Plan, Design Guidelines; or City project) relating to the design of development and places may be referred to the Design Review Panel at the discretion of the City.

 

Importantly, the above provides discretion for the Director of Planning and Development to require design review in instances where other criteria are not fully met but the proposal would benefit from design input. Outside of the development assessment process, the City can refer its own projects to the DRP at its discretion.

 

Normally, a proposal is reviewed three times by a DRP, but this is not mandatory. The draft LPP allows for three design reviews at no cost to the proponent, provided one of the reviews occurs before the lodgement of a development application. This is to incentivise early engagement with the panel, which increases opportunities for DRP feedback to be incorporated into a design at a lower cost to the proponent.

 

If no review is undertaken before lodgement, then only one review will be provided at no cost to the proponent. This may provide an incentive for the applicant to take on board the DRPs early feedback to avoid costs associated with a third review.

 

A Scheme Amendment may be appropriate at some point to introduce a trigger to require applicants of specified development to participate in the design review process, however this is not considered necessary at this time given the level of positive buy-in from applicants to the informal design review processes being undertaken on significant development within the City currently.  Officers will liaise with the Department of Planning Lands and Heritage on this matter and seek to introduce a relevant provisions as part of the Scheme Review process if deemed necessary.

Statutory Environment

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

 

Division 2, clause 4 sets out the procedure for making a local planning policy.

 


 

Relevant Plans and Policies

State Planning Policy 7.0 Design of the Built Environment (SPP7.0)

SPP7.0 states that planning authorities should establish or provide access to design review processes for complex planning proposals. This is set out in the WAPC’s “Design Review Guide – Guidance for Local Governments to set up and operate a design review process”.

Financial Implications

Establishment and Maintenance Costs

Estimates put establishment costs at $5,000, covering advertising and circulating an Expression of Interest Campaign (EOI) and potential recruitment costs if administration staffing is outsourced. Costs for outsourcing administration support for the panel are likely to be $7000 per annum. These estimates are based on costings from the City of Stirling.

 

Other options that are being explored are ‘rotating’ the hosting of the DRP such that administrative support can be undertaken with existing staffing arrangements. This would involve the Cities of Bunbury and Busselton and the Shire of Augusta Margaret River taking turns in hosting the DRP meetings and undertaking the administrative tasks, including preparing and circulating agendas, invites, taking minutes and formulating recommendations with the Panel Chair. This would reduce this workload to once quarterly, which is manageable within existing staffing arrangements and would negate the staffing cost. The Shire is also exploring for external funding assistance to cover the establishment costs.

 

The total establishment and maintenance costs when shared between the five participating local governments may be $2,400 per year for the City, however these may be further reduced based on the above.

 

Meeting Costs

The TOR sets the remuneration of the Panel Members, which is at $500 per meeting for the chair and $400 per meeting for other members, inclusive of preparation time. Costings have been based on five panel members, but this may be adjusted down depending on the outcomes of the EOI process. Based on this approach, one meeting would cost $2,100.

 

The estimated budget for operating the SWDRP would be $33,070 annually based on 12 meetings per year. Under the terms of the draft MOU, the meeting costs would be divided equally between those local governments with matters to be considered at a particular meeting.  This model is yet to be tested through an EOI process however so there may need to be changes to the model if there is insufficient interest based on offering only one fee per meeting, irrespective of the number of matters to be considered.

 

Based on the details above, a budget allocation of $35,470 for the 2021/22 financial year will be requested through the budgeting process. The costs to run the DRP process are expected to fluctuate dependent on the level of development proposed on any given year and could be returned to general municipal funds at budget review if unlikely to be expended in the financial year.  It is noted that development applications the subject of Design Review are likely to generate significant application fees which would off-set the cost of the review.  City projects referred to DRP would need to account for referral costs in the project budget.

 

It should be noted that support to advertise the draft LPP does not commit Council to supporting any particular budget allocation or prevent Council from reconsidering the timing of a DRP process based on financial constraints. It is also possible that the City could pursue a full cost recovery methodology.

Stakeholder Consultation

Part 2, Division 2 of the Deemed Provisions requires that a local government undertake consultation before adopting or amending a local planning policy (although a minor amendment can be made without consultation). At least 21 days must be allowed for the making of submissions.

It is proposed that consultation will be for a period of four weeks and will be undertaken as follows:

·          Notices in the local newspaper for four consecutive weeks, as well as on the City’s website, including the subject and nature as well as objectives of the proposed LPP; and

·          A portal is to be created using the City’s YourSay platform for the online lodgement of submissions.

Risk Assessment

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

Options

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

1.         Choose not to initiate the Policy recommended to be initiated as part of this report; and/or

2.         Modify the Policy before initiation.

 

CONCLUSION

It is recommended that Council support the proposed initiation of the LPP as described in this report.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

Implementation of the officer recommendation would involve public consultation of the initiated Policy as outlined in the consultation section of this report above. It is expected that this will commence within one month of the Council decision. A subsequent report will be presented to the Council following public consultation outlining the nature of any submissions received in relation to the Policy and any necessary modifications to the Policy (where applicable).


Policy and Legislation Committee

62

28 April 2021

6.3

Attachment a

Draft Design Review Policy

 


 

 


Policy and Legislation Committee                                  65                                                                      28 April 2021

10:37am:       At this time, Mr Needham, Ms Reddell, Ms Wilkinson and Ms McGinty left the meeting.

 

10.37am:      At this time, Mr Archer, Mr Nottle and Mrs Heys entered the meeting.

 

6.2             PROPOSED COUNCIL POLICY: INVESTIGATION OF ALLEGED BREACHES OF BEHAVIOUR

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

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

SUBJECT INDEX

Council Policies

BUSINESS UNIT

Governance Services

REPORTING OFFICER

Governance Coordinator - Emma Heys

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

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

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Council Policy: Investigation of Alleged Breaches of Behaviour (Proposed)

Attachment b    Amended Complaints Form  

 

OFFICER RECOMMENDATION

That the Council:

1.       Adopt the proposed Council Policy: Investigations of Alleged Breaches of Behaviour (Attachment A) (the Policy); and

 

2.       Approve the amended form in which complaints of alleged breaches of the Code may be received (Attachment B) (the Form).

 

Committee Decision

PL2104/389            Moved Councillor G Henley, seconded Councillor L Miles

That this item be deferred to the next meeting of the Policy and Legislation Committee to be held on 26 May 2021.

 CARRIED 5/0

 

Reasons:              To consider the outcome of Council's decision on the proposed Code of Conduct for Council Members, Committee Members and Candidates at the Ordinary Meeting of Council to be held on 28 April, as well as the consideration of drafting issues raised by Committee members. The Committee requests a revised Policy is returned to the Committee at the next scheduled meeting.

 

EXECUTIVE SUMMARY

This report presents a proposed Council policy: Investigation of Alleged Breaches of Behaviour (Attachment A) (the Policy) for Council endorsement. This report also seeks Council approval of the amended form in which complaints of alleged breaches may be received (Attachment B) (the Form).


 

BACKGROUND

The Local Government (Model Code of Conduct) Regulations 2021 (Regulations) were gazetted and came into effect on Wednesday 3 February 2021. Local governments are required to adopt a Code of Conduct for Council Members, Committee Members and Candidates (the Code) within three months of gazettal (being 3 May 2021), as per Section 5.104 of the Local Government Act 1995 (the Act).  Council will consider adoption of the Code of Conduct at its Council meeting of 28 April 2021. 

Under Section 5.103 of the Act, the Regulations prescribe a Model Code which includes general principles and behaviours for Council Members, Committee Members and Candidates. Alleged breaches of Part 3 of the Code ‘Behaviours’ are subject to a complaints process, to be determined and managed by the local government. Officers have developed a Council Policy: Investigation of Complaints of Alleged Breaches of Behaviour (the Policy) to deal with alleged breaches of behaviours.

Under the Regulations, local governments are required approve a complaint form in which complaints may be received, which Council did on 24 February (C2102/032). Officers have amended the Form to align with the recently released WALGA template and are seeking Council’s approval of the amended form.

OFFICER COMMENT

In accordance with Part 3 of the Code, a person may make a complaint alleging a breach of the behaviour(s) set out in the Code. The procedure for dealing with a complaint may be determined by the local government, to the extent that it is not provided for in the Code.  The Policy has been developed to establish a clear investigation process. The Policy proposes to appoint an experienced third party/parties to investigate complaints in order to address potential conflicts of interest arising from the CEO or employees of the City being involved in investigating complaints. The Policy provides a set of guidelines for the investigation process and outlines how the findings are presented to Council.

Officers believe a stand-alone policy that deals with the investigation of complaints is preferable and cleaner than including the process within the Code itself.

An amended form for receipt of complaints of alleged breaches has been modelled on the template form recently provided by WALGA (Attachment B). The amended form allows a complainant to detail the specific sections of the Code that are alleged to have been breached and to outline if, in accordance with paragraph 5.10 of the Policy, they would be willing to engage in mediation prior to formal investigation of the complaint.

Statutory Environment

Sections 5.103 and 5.104 of the Local Government Act 1995 provides for regulations that prescribe a Model Code of Conduct and the requirement for local governments to adopt the model code.

Schedule 1, Division 3, clause 11(3) of the Regulations requires Council to authorise one or more persons to receive complaints and withdrawals of complaints, while clause 11(2)(a) requires the approval of a form for the receiving of complaints.

Relevant Plans and Policies

The officer recommendation aligns to the City of Busselton Code of Conduct for Council Members, Committee Members and Candidates.

Financial Implications

There will be financial implications associated with the engagement of an investigator as outlined in the Policy. Funding this resource will require an allocation in the 2021/2022 budget. It is proposed that a figure of $5,000 is allocated to start with and adjusted as required.

Stakeholder Consultation

The Western Australian Local Government Association (WALGA) have recently developed and released a Code of Conduct Behaviour Complaints Management Policy. The Policy largely aligns with WALGA’s Policy, noting the City has proposed the appointment of an investigator in lieu of establishing a Complaints Committee in accordance with section 5.8 of the Act.

Risk Assessment

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

Options

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

1.              amend the Policy; or

2.              not adopt a complaints policy and allow the City’s appointed complaints officer to manage complaints – noting the potential for conflicts of interest to arise.

CONCLUSION

Officers have developed a Council Policy: Investigation of Complaints of Alleged Breaches of Behaviour to deal with complaints of alleged breaches of behaviours.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

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

 


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6.2

Attachment a

Council Policy: Investigation of Alleged Breaches of Behaviour (Proposed)

 





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6.2

Attachment b

Amended Complaints Form

 





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11.17am:             At this time, Mr Archer, Mr Nottle and Mrs Heys left the meeting.

 

11.17am:              At this time, Mr Needham, Ms Reddell and Ms McGinty entered the meeting.

 

11.19am:              At this time, Ms Wilkinson entered the meeting.

 

7.               General Discussion Items

7.1             HOLIDAY HOMES REGULATION REVIEW

DISCLOSURE OF INTEREST

Date

28 April 2021

Meeting

Policy and Legislation Committee

Name/Position

Cr Kelly Hick, Deputy Mayor

Item No./Subject

Item 7.1 Holiday Homes Regulation Review

Type of Interest

Financial Interest (Indirect)

Nature of Interest

I am the owner/manager of a tourism accommodation business.

 

Cr Hick requested that the Committee considers, under section 5.68 of the City’s Standing Orders Local Law 2018, that the extent of her interest is trivial or insignificant and unlikely to influence her conduct in relation to the matter.

 

11.20am:       At this time, Cr Hick left the meeting.

 

Committee Decision

PL2104/390               Moved Councillor G Henley, seconded Councillor L Miles

That the Committee considers the extent of Cr Kelly Hick’s financial interest, under section 5.68 of the City’s Standing Orders Local Law 2018, to be trivial or insignificant and approves Cr Hick to remain involved in the discussion of this item.

CARRIED 4/0

 

11.21am:       At this time, Cr Hick re-entered the meeting.

 

To assist in preparation of a subsequent, substantive report on a review of the City’s approach to the regulation of holiday homes, the Committee is asked to receive a briefing on some information relevant to that review; and provide informal feedback on opportunities for change that could be implemented through that review.

 

It is envisaged that the substantive report will be considered at the Committee’s May meeting, and will identify:

·        The City’s current regulatory approach;

·        The background to the development of that approach, and how the approach has developed over time;

·        The experience with the current approach, and issues / concerns that have emerged over time;

·        Approaches employed in other jurisdictions;

·        State Government policy position;

·        Opportunities for change; and

·        Recommendations around the processes to complete the review and potential changes to the City’s approach.

It is anticipated that the recommendations will involve complementary and integrated amendments to the City’s town planning scheme, holiday homes local planning policy and Holiday Homes Local Law.

 

Some of the information officers intend to provide to Councillors at this meeting includes:

·                City’s current regulatory approach;

·                Location and numbers of registered holiday homes;

·                Residential vacancy rates in the City and comparable local government areas;

·                Complaints relating to holiday homes;

·                Current State Government policy position; and

·                Opportunities for change to the City’s current approach.

 

Some of the opportunities for change that officers intend to seek informal feedback from Committee members about are:

·                Identification of areas where holiday homes may be permitted/not permitted or preferred/non-preferred;

·                Revised standards for the size or design of properties relative to maximum permissible occupancy numbers;

·                Time limited development approvals;

·                Whether maximum permissible numbers can or should be reduced for approved holiday homes;

·                Requirements / expectations for holiday homes managers;

·                Management of dogs at holiday homes; and

·                Complaints and compliance processes and communication.

 

It is also anticipated that, following the Committee discussion, some information would be provided on the City’s website setting out that a review is underway, and providing some basic information about the review process.

 

Copies of the current holiday homes local planning policy and Holiday Homes Local Law are both attached, as is a copy of the State Government’s response to the findings of the 2019 Parliamentary Inquiry into short stay letting in WA.


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7.1

Attachment a

Local Planning Policy

 






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Attachment b

Local Law

 


















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7.1

Attachment c

Government Response

 














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8.               Next Meeting Date

Wednesday, 26 May 2021.

 

 

9.               Closure

The meeting closed at 12.26pm.

 

 

 

 

 

THESE MINUTES CONSISTING OF PAGES 1 TO 2 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 26 May 2021.

 

DATE:_____________________    PRESIDING MEMBER:_____________________________