Agenda of Ordinary Council

Ordinary Council: Agenda

28 January 2020 Page 21

SHIRE OF ESPERANCE

AGENDA

Ordinary Council Meeting
TO BE HELD IN Council Chambers ON 28 January 2020

COMMENCING AT 4pm

1. OFFICIAL OPENING

2. ATTENDANCE

Members

Cr I Mickel President Rural Ward

Cr B Parker Deputy President Rural Ward

Cr J O’Donnell Town Ward

Cr S McMullen Town Ward

Cr S Payne Town Ward

Cr J Obourne Town Ward

Cr R Chambers Town Ward

Cr D Piercey, JP Town Ward

Cr W Graham Rural Ward

Shire Officers

Mr W M (Matthew) Scott Chief Executive Officer

Mr S Burge Director Corporate Resources

Mr M Walker Director Asset Management

Mr T Sargent Director External Services

Mr R Hindley Manager Strategic Planning & Land Projects

Miss A McArthur Administration Officer – Executive Services

Members of the Public & Press

3. APOLOGIES & NOTIFICATION OF GRANTED LEAVE OF ABSENCE

4. APPLICATIONS FOR LEAVE OF ABSENCE

5. ANNOUNCEMENTS BY THE PERSON PRESIDING WITHOUT DISCUSSION

6. DECLARATION OF MEMBERS INTERESTS

6.1 Declarations of Financial Interests – Local Government Act Section 5.60a

6.2 Declarations of Proximity Interests – Local Government Act Section 5.60b

6.3 Declarations of Impartiality Interests – Admin Regulations Section 34c

7. PUBLIC QUESTION TIME

Questions taken on Notice at the December 2019 Ordinary Council Meeting.

Further to questions on behalf of the Esperance Ratepayers Association that were taken on notice at the December 2019 Ordinary Council Meeting, please see below the Shire’s response (in Italics).

Planned Jetty Cost

Members of the Esperance Ratepayers Association have accepted the decision by Council to proceedwith deconstruction and build of a replacement jetty. It is important to understand the full, lifetime cost of the project.

Construction Expenditure

Can Shire provide the financial details regarding:

· Fixed cost to deconstruct

$1,521,700 (Exclusive of GST)

· Fixed cost to construct

$6,796,130 (Exclusive of GST)

· Shire additional cost

H & H heritage supervision

$40,050 (Exclusive of GST)

Project Supervision (Alun Hughes)

~$80,000

Other

staging area

storage yard (clear and gravel laydown area only) $35,419 (Exclusive of GST)

tip fees Disposal of Concrete ~(175m3 x $18.18/m3 =) $3181.50 (Exclusive of GST)

valuation and recording N/A

archives N/A

underwater recording N/A

other (pis advise)

Works insurance for the new Jetty construction $27,891 (Exclusive of GST)

Replacement Jetty Design $334,800 (Exclusive of GST)

Funding

· Federal Grant

$4,000,000 (Replacement)

· Other grants

Nil

· Other

Jetty Reserve

$2,274,850 ($900,000 Demolition, $1,000,000 Replacement, $40,050 Heritage Supervision, $334,800 Design)

Airport Reserve

$1,000,000 (Replacement)

Priority Projects Reserve

$1,700,000 ($900,000 Demolition, $800,000 Replacement)

Cost Recovery

· Timber

Undetermined

· Other (please indicate)

Undetermined

Life Expectancy

· Please advise the life expectancy of the new structure

Minimum 50 years

Lifetime costs

· Annual maintenance

Annualised maintenance estimate $57,000 (Exclusive of GST) per year.

· Total, anticipated maintenance of the structure over its anticipated life

50 x $57,000 = $2,850,000 (Exclusive of GST) in today’s dollars

Depreciation

$6,796,130 / 50 = $135,922.60 per year

Future demolition cost

Unknown at this stage. This cannot be predetermined, it depends on a number of factors including such as what a future Council may resolve to do (demolish, replace, upgrade etc) closer to the end of the new replacement jetty’s design life.

Annual Revenue

· Rates

The Shire is unable to charge a specific Rate for this service.

· Levy

The Shire is unable to charge a specific Levy for this service.

· Entrance fee

Unlike the Busselton Jetty, the Shire has advised there will not be an entrance fee or toll to access the New Replacement Jetty.

· Other

The Shire has no current plans to use the New Replacement Jetty as a revenue source, however this is dependent on future Council resolutions.

8. PUBLIC ADDRESSES / DEPUTATIONS

9. Petitions

Nil

10. CONFIRMATION OF MINUTES

That the Minutes of the Ordinary Council Meeting of the 17 December 2019 be confirmed as a true and correct record.

Voting Requirement Simple Majority

Councillor Attendance - October 2019 – December 2019

	Agenda Briefing Sessions (3)	Ordinary Council Meetings (3)	Special Council Meetings (1)	Annual Electors Meeting (0)
Shire President Cr Ian Mickel	3	3	1	0
Deputy President Cr Basil Parker	3	3	1	0
Cr Jo O’Donnell	3	3	1	0
Cr Steve McMullen	3	3	1	0
Cr Shelley Payne	3	3	1	0
Cr Jennifer Obourne	3	3	1	0
Cr Ron Chambers	3	3	1	0
Cr Dale Piercey	3	3	1	0
Cr Wes Graham	3	3	1	0

11. DELEGATES’ REPORTS WITHOUT DISCUSSION

12. MATTERS REQUIRING A DETERMINATION OF COUNCIL

12.1 External Services

Item: 12.1.1

Development Application - Holiday Home - Lot 42 (309) Twilight Beach Road, West Beach

Author/s	Richard Hindley	Manager Strategic Planning & Land Projects
Authorisor/s	Matthew Scott	Chief Executive Officer

File Ref: D19/32383

Applicant

Marc Payne

Location/Address

Lot 42 (309) Twilight Beach Road, West Beach

Executive Summary

For Council to consider a development application for a Holiday House at Lot 42 (309) Twilight Beach Road, West Beach.

Recommendation in Brief

That Council approve development application 10.2018.3985.2 for approval of a Holiday House at Lot 42 (309) Twilight Beach Road, West Beach subject to conditions:

Background

A Development Application was received on the 30 October 2019 to permit a Holiday House on Lot 42 (309) Twilight Beach Road, West Beach.

The application was referred to adjoining landowners for comment and is now brought to Council due to objections being received.

Officer’s Comment

This application is in all respects an amendment to an existing approval, Council officers can only recommend its approval by giving consideration to all relevant considerations including any outstanding conditions from the current approval.

As the dwelling contains four bedrooms the Disability (Access to Premises – Buildings) Standard 2010 applies if all the bedrooms are used to accommodate guests. In this instance a condition is proposed that allows the approval to be limited to three bedrooms by locking one room or suitably refurnishing to allow a use such as “study” or ”games room”. Alternatively if the applicant wishes to use all bedrooms, they will be subject to compliance with the Disability (Access to Premises – Buildings) Standard 2010.

In addition to this under Clause 78D(1) of the Deemed Provisions the change in use of the building requires a bushfire attack level assessment to be undertaken and any works required out of this are to be completed prior to the commencement of the land use.

Three objections have been received from adjoining landowners. The objections are summarised as follows:

No.

Submission

Matter to be Considered Reference

Officer Comment

· Both accesses to Lot42 take away any privacy to the front, side and back of my house.

· 67.(n)(iii)

· The proposed development may lower the amenity of the adjoining lot.

· Most people are honest. Some are not. Some are thieves. People talk to others about where they stay. There are no gates or fences on these properties as Town planning prefers and there is plenty of coastal bush and trees. A holiday home next door would greatly increase the chance of robbery from my shed or home.

· 67.(n)(iii)

· 67.(e)

· It is correct that the proposed development does not comply with the Designing Out Crime Planning Guidelines (WAPC) due to poor surveillance but the shire is unaware of this being an issue with the current development.

· Because of the design of the house on Lot 42 I would imagine the house could and would be rented and shared by up to five couples. This could mean up to five vehicles using the driveways many times a day. As well as a danger to my grandchildren when they visit there is also a dust problem and a blind corner on the bottom of the drive which has had some near accidents between residents that are aware of the danger. There is also a blind corner on Twilight Beach road when accessing the property turning right off Twilight Beach Rd. This is sometimes a difficult turn and more so for strangers with traffic that speeds around the corner from Blue Haven.

· 67.(t)

· Given the shared access ways with the adjoining lot as well as potential conflicts between users of both sites traffic is likely to be an issue for the development when the building is occupied. However this is not unique to the proposed use as the same issue would arise if the owner occupied the premises with an extended family.

· Because of the number of people that may stay at Lot 42, the functions that may be held there and the owners not living in the area, I would imagine there will be a problem with noise. My house is downhill from the property and noise travels very easily from their decking to my residence.

· 67.(n)(iii)

· The development will need to comply with the Environmental Protection (Noise) Regulations 1997 and the property management plan will be supplied to adjoining property owners if the development is approved.

· Lot 43 is a very private, quiet and secluded with beautiful views and a holiday house next door with the accesses so close would devalue this property.

· 67.(n)(iii)

· 67.(y)

· The proposed development may lower the amenity of the adjoining lot. Impact on the property price is not a planning consideration.

· I paid a premium price to purchase this property in a private area not commercialised. It is a very peaceful area and I am privileged to be able to live here. To me it would be sad to see this area commercialised.

· 67.(a)

· 67.(n)(iii)

· 67.(y)

· The objective for the Residential zone includes: “To provide for a range of non-residential uses, which are compatible with and complementary to residential development.” The Council has previously accepted that the proposed use is compatible with residential development.

· Council is welcome to visit if a better understanding of the area before coming to a decision.

· 67.(y)

· Noted

· Rotating neighbours, none of whom we will get to know or trust or feel safe next to. If it was tenanted properly, the tenants would be screened and we would have a chance to meet & get to know them.

· 67.(n)(iii)

· The proposed development may lower the amenity of the adjoining lot. Although the Shire of Esperance’ experience does not suggest that frequent change in occupancy has resulted in nuisance at other Holiday houses it should be noted that previous approvals have been granted in areas where smaller lot sizes give rise to a greater expectation of interaction with neighbours.

· Safety risk to our children – how is the owner going to ensure the people who stay there are all safe around children. And there is no reason to think that because it may be “high end” accommodation, that it will weed out the occupants.

· 67.(n)(iii)

· The proposed development may lower the amenity of the adjoining lot but this is not borne out by experience.

· We purchased this land thinking we would be living among a group of locals / community.

· 67.(m)

· The objective for the Residential zone includes: “To provide for a range of non-residential uses, which are compatible with and complementary to residential development.” The speculated impact on residential development is not consistent with shire experience to date.

· Large amount of numbers at the holiday home – it is a large scale house capable of sleeping several guests. This is not a small property.

o Noise!!

o Excessive people coming & going (more than day-to-day of regular residents).

o Extra rubbish / waste

· 67.(n)(iii)

· Parties / events held at the house – given the large scale of the house, it lends itself to weddings, parties, after-ball parties (already there has been one recently), bucks / hens parties etc. None of which are nice for our children (or us!) to have to listen to / endure as they are trying to get rest.

· 67.(n)(iii)

· Extra risk for unauthorised access onto our property. While we aren’t there (still planning our build), we cannot even police who is on our block.

· 67.(e)

· The proposed development also does not comply with the Designing Out Crime Planning guidelines (WAPC) due to poor surveillance.

· Ruining the serenity & peacefulness of the area – that we spent so much money on securing. Could’ve bought down on the Esplanade if we wanted excessive traffic, loads of noise and continual passers through / passers-by.

· 67.(n)(iii)

· Don’t wish for it to bring down the overall property values in the area. There is a precedent to set here.

· 67.(y)

· The proposed development may lower the amenity of the adjoining lot. Impact on the property price is not a planning consideration.

· Rubbish & waste. We have already had to clean up rubbish & old furniture that has been thrown over the fence into our property (presumably during recent filming??). How will the owner ensure this won’t happen again? And if it does, it’s not like the tenants can be spoken with and processes put in place for it not to happen again… new tenants = new set of rules every time.

· 67.(u)(iii)

· 67.(n)(iii)

· The proposed development may lower the amenity of the adjoining lot. The property management plan will be supplied to adjoining property owners if the development is approved.

· Holiday visitors have no consequence for not following guidelines – which doesn’t leave us much faith for our rotating neighbours.

· 67.(n)(iii)

· The comment is speculative and may be incorrect. The property management plan will be supplied to adjoining property owners if the development is approved

· The holiday house is very close to our fence line – not like it’s on the other side of the block – therefore these concerns will affect us very directly.

· 67.(n)(iii)

· The proposed development may lower the amenity of the adjoining lot.

· An application was placed by the previous landholder at Lot 42 Twilight Beach Road approx. 15 years ago - for holiday homes to be located on this land. Application was refused (due to many of the same reasons above – which haven’t changed over time) and we hope this is the case again.

· 67.(w)

· Amendment No. 43 to Town Planning Scheme No. 22 for the development of three 120m² holiday accommodation units was refused by the then Hon. Minister for Planning and Infrastructure.

· Bring attention to the fact that this property has still got investigations occurring regarding the legitimacy of the current ‘illegal’ access to Twilight Beach Road and feel until this is resolved, it would be irresponsible to even consider changing any usage of this property until this matter is finalised, to minimise further complications and possible wrong doings.

· 67.(y)

· Lot 42 Twilight Beach Road actually has unimpeded access to Twilight Beach Road as shown on Diagram 88336 which was prepared as a result of Subdivision Application 91916.

· Lot 42 Peek Road & Lot 43 Peek Road were originally one property known as only Lot 42 Peek Road, West Beach until the original purchaser, Mr Gerry Maguire further subdivided this block with his good friend Mr Kim Longbottom, hence the development became Lot 42 & Lot 43 Peek Road, West Beach. It was a condition of this subdivision and previous subdivision approvals involving this land that access would be from Peek Road only, hence why a Right of Carriageway was required for Lot 42 Peek Road to Access their property from Lot 43 Peek Road’s driveway.

· 67.(y)

· Lots 42 and 43 on Diagram 88336 were subdivided from Lot 3 on Diagram 82642.

· Cleary a holiday house would bring increased traffic into this ‘illegal’ access and many of these people would be international travellers with basic local road skills.

· 67.(y)

· The comment is speculative and not supported by verifiable data. Any deficiency in road skills is a matter for the Police.

· A guest at the Payne house mistakenly put their bins out on Twilight Beach Road last Sunday (photo in submission). The Payne’s bins have NEVER been picked up off Twilight Beach Road, as it is.an illegal access, instead their bins have ALWAYS been picked up from the Legal access on Peek Road.

· 67.(y)

· 67.(u)(iii)

· This can be addressed in the Property Management Plan

· If you are not a local, just crossing this piece of road on foot to get to the beach can also be a very dangerous scenario. Many people speed around that Blue Haven corner.

· 67.(s)(i)

· 67.(y)

· Traffic behaviour is a police matter.

· The rubbish bins unattended up here at Blue Haven can blow over quite easily in our strong winds at times. This has happened several times since the Paynes have not been residing here in Esperance over the last 12 month period. They put the bins out when they leave and they can stay out there full for up to a week before being picked up. When they blow over full as you can imagine rubbish is strewn all over.

· 67.(y)

· 67.(u)(iii)

· This can be addressed in the Property Management Plan

· Primarily I feel that this commercial unattended holiday house would be at odds with the “Objective” of Planning Scheme 24 to “maintain the land for purely residential purposes” (as set out in Special Control Area Blue Haven - 7 (b)(iv).

· 67.(a)

· Whilst SCA7 (b)(iv) gives an objective to ‘maintain the land for a purely residential purpose’ the Zoning and Land Use Table in Cl. 17 shows a ‘Holiday House’ as an ‘A’ use that can be approved subject to notice being given in accordance with clause 64 of the deemed provisions.

· Purchased our property Lot 52 Twilight Beach Road, West Beach, (which was the last legal Twilight Beach Road property, although our neighbours knowingly had an illegal access to Twilight Beach Road) in March 2005. We paid this premium at this time to purchase what we believed was our Dream Home and Property to raise our family. We paid this premium to secure world class views, acreage, privacy, tranquillity, serenity, quietness and to be the last ‘legal’ address on Twilight Beach Road with a 100m frontage………our very own piece of paradise! It is why people aspire to live here and I don’t believe any of us deserve to ‘rob’ them of this privilege.

· 67.(y)

· Lot 42 Twilight Beach Road is shown as having unimpeded access to Twilight Beach Road as shown on Diagram 88336 which was prepared as a result of Subdivision Application 91916.

· The Payne House is a very large home with huge living areas with views and the bedrooms are down below and do not have views. This type of house does not attract the average international couples or small groups or a quiet, relaxing family holiday where people enjoy to have their own bedrooms with views and do not require so much living space. This house will attract large events such as weddings, parties, group family holidays (up to 3 and 4 families), as it can house many extra people, if people bring their own bedding etc. which notoriously happens with unattended Holiday Homes and there is no way to police it.

· 67.(n)(iii)

· The comment is speculative and not generally consistent with shire experience. An approval granted by Council does not exempt the applicant form compliance with other legislation applicable to events etc.

· Several people in Blue Haven, including myself, currently operate short term accommodation; however there is the condition that you must be residing on site.

· 67.(n)(iii)

· The ‘Holiday House’ use is not tied to the operator residing on the site, only that there is a local manager.

· Esperance is becoming a lot more well known around the globe and undoubtedly the international visitors will just continue to increase coming (as long as the kangaroos stay alive our at Lucky Bay!) we will undoubtedly get more international tourists visiting.

· 67.(y)

· Noted

· In the past Shelley Payne has done short term accommodation as well, they would rent out the Granny Flat off their house. Even back in those times when the host was on site we had many issues. I would have Shelley Payne’s guests arriving at my door at different periods of times lost trying to find her house (although I found out later on that because there were many unusual changes happening to our property on Google Maps.

· 67.(y)

· 67.(n)(iii)

· Note – this is outside of this development application process.

· I had several occasions where guests of the Payne’s would be wandering, looking lost on our property as I would find out that they were trying to find their way to the beach.

· 67.(n)(iii)

· This can be addressed in the Property Management Plan

· The Payne House is located very close to my boundary - approx. 5m setback (maybe less). I have been impacted by this family in the past regarding large parties being held here, and the impacts to our property were huge (details of an incident are contained within the submission).

· 67.(m)

· 67.(n)(iii)

· The development will need to comply with the Environmental Protection (Noise) Regulations 1997. Antisocial behaviour is a matter for the Police.

· Due to the nature of the Payne’s low lying block which is surrounded by a rising gradient, it actually works as a natural amphitheatre, which clearly noise would impact the surrounding residents all the more when events would be held here. At times I stay at the property on my own with my children and I don’t like the thought of total strangers frequenting the neighbouring property.

· 67.(m)

· 67.(n)(iii)

· The development will need to comply with the Environmental Protection (Noise) Regulations 1997.

· The proposed development may lower the amenity of the adjoining lot. The property management plan will be supplied to adjoining property owners if the development is approved.

· Blue Haven is neither connected to the town water supply or to deep sewerage. Both of these factors are significant when considering a proposal for a holiday house in our area and subsequent additional approvals. I know my neighbour Shelley Payne had her water tested several years ago and it was deemed non-potable.

· 67.(n)(i)

· There is a requirement that the development be supplied with potable water and if approved this could be placed as a condition of approval.

· In closing, please know if this proposed Holiday House is granted it will undoubtedly increase the value of the Payne property and devalue all other neighbouring properties overnight.

· 67.(y)

· Impact on the property price is not a planning consideration.

· Furthermore if this Holiday House is granted it will set a precedent for approving Holiday Homes in the Blue Haven area and I for one will be lodging my proposal to also become a holiday house.

· 67.(y)

· The Zoning and Land Use Table in Cl. 17 shows a ‘Holiday House’ as an ‘A’ use that can be approved subject to notice being given in accordance with Clause 64 of the Deemed Provisions.

· It would be discriminatory to deny us our proposal if this was to be granted. I do not want this proposal to be granted, but please know we will definitely go down this avenue if this proposal is successful. Council must be responsible here and look at all the dangers of opening up Pandora’s Box here. Once a holiday house has been granted in Blue Haven, it opens it up to any other property applying for this.

· 67.(y)

· The Zoning and Land Use Table in Cl. 17 shows a ‘Holiday House’ as an ‘A’ use that can be approved subject to notice being given in accordance with Clause 64 of the Deemed Provisions.

· Gerry Maguire was the initial purchaser, land owner and developer of Lot 42 Peek Road, West Beach WA 6450.

· 67.(y)

· Lots 42 and 43 on Diagram 88336 were subdivided from Lot 3 on Diagram 82642.

· When Gerry Maguire originally purchased Lot 42 Peek Road, it was a condition of the subdivision that there was NO ACCESS granted to Twilight Beach Road.

· 67.(y)

· The Subdivision which created Lots 42 and 43 on Diagram 88336 (DPUD Ref: 91916) did not apply a condition preventing access to Twilight Beach Road other than for Lot 43 which was permitted one access point to Twilight Beach Road.

· Gerry Maguire … applied to further subdivide my block Lot 42 Peek Road, West Beach into 2 blocks which became Lot 42 Peek Road, West Beach & Lot 43 Peek Road, West Beach respectively. It was a condition of this subdivision that we establish a driveway from Peek Road to service BOTH properties, hence Lot 42 Peek Road, West Beach required to establish the easement Right of Carriageway to utilise this Peek Road access.

· 67.(y)

In considering this application staff reviewed the existing approval for short term accommodation 10.2018.3985. It was noted that a number of conditions of the existing approval appear to have not been met, specifically conditions 3, 14, 15 and 17 which state:

3. Lighting to assist evacuation and smoke alarms must be hard wired to mains power and be installed in the rooms and associated areas in accordance with Part 3.7 of the Building Code of Australia.

No evidence has been provided to confirm this condition has been met.

14. Prior to Commencement of Use an Electrical Safety Certificate, Certificate of Building Compliance, Plans and Documentation demonstrating compliance with the provisions of the Building Code of Australia listed as part of Advice Note (3) are to be provided to Shire of Esperance (Planning Services).

No Electrical Safety Certificate has been provided.

15. In accordance with Clause 78D(1) of the Deemed Provisions a bushfire attack level assessment is required to be prepared by an Accredited BAL Assessor and any upgrades required by the determined bushfire attack level are to be undertaken prior to commencement of use.

No BAL assessment has been provided to the shire but the observation of staff is that the assessed bushfire attack level would be so high as to warrant extensive additional works to be undertaken before the residence could be approved for the intended use.

17. This planning approval would only be valid if the land owner resides on the property.

Feedback from neighbours suggests the property has been used when the owner resides elsewhere.

It is a serious concern that existing conditions of approval have not been met. In addition to the obvious legal implications affecting a person conducting a business contrary to an approval, there is a potential risk to occupiers if insurance underwriters deem the activity to be unlawful and decline to accept liability in the event of a claim being made.

That being said, Council still has a number of options in considering this application.

Options

Option 1

If Council accepts the objections from neighbours are compelling, it could resolve:

That Council refuse development application 10.2018.3985.2 for approval of a Holiday House at Lot 42 (309) Twilight Beach Road, West Beach for the following reasons:

1. The proposed development would have an injurious impact on the character of the locality.

2. The proposed development would have an injurious social impact on adjoining properties.

3. The proposed development is not suitable due to an unaddressed bush fire risk.

This option refuses the development however it allows the original consent to continue. The matter of the number of non-compliances remaining unaddressed on the earlier approval can be dealt with by staff as a separate matter.

This option is open to Council. It is entirely open to Council to provide a ruling on the subjective matters of whether the proposed development would have an injurious impact on the character of the locality and/or whether the proposed development would have an injurious social impact on adjoining properties. It is an objective fact that the bushfire risk has not been addressed by the applicant to date, and on that basis Council could legitimately consider refusal of the application.

Option 2

That Council approve development application 10.2018.3985.2 for approval of a Holiday House at Lot 42 (309) Twilight Beach Road, West Beach subject to the following conditions:

1. Development shall be carried out and fully implemented in accordance with the details indicated on the stamped approved plan(s) unless otherwise required or agreed in writing by the Shire of Esperance (Planning Services).

2. This approval supersedes Development Approval 10.2018.3985.1 and Development Approval 10.2017.3632.1.

3. The Holiday Home – Property Management Plan is to be amended to clearly identify that rubbish collection is from Peek Road and all neighbours are to be provided with a copy of the aforementioned plan prior to the commencement of use.

4. The approved short term accommodation must not display a sign exceeding 0.2 square metres in area.

5. Lighting to assist evacuation and smoke alarms must be hard wired to mains power and be installed in the rooms and associated areas in accordance with Part 3.7 of the Building Code of Australia.

6. A minimum of two (2) car parking bays are to be provided on-site for the exclusive use of the Short Term Accommodation in accordance with the requirements of Australian Standard AS2890.1:2004 Parking Facilities – Off-street Car Parking.

7. The driveway/accessway shall be constructed and maintained to an all-weather standard (e.g. gravel, crushed rock) to facilitate access to the development by 2 wheel drive vehicles.

8. All stormwater and drainage run off from all roofed and impervious areas is to be retained on-site to the satisfaction of the Shire of Esperance (Building Services).

9. The provision of all services, including augmentation of existing services, necessary as a consequence of any proposed development shall be at the cost of the developer and at no cost to the Shire of Esperance.

10. The approved development shall provide a supply of potable water of the quality specified under the Australian Drinking Water Quality Guidelines 2004 (as amended), adequate to meet the needs of the development.

11. Should the existing effluent disposal system/aerobic treatment unit (ATU) fail or cause nuisance, it is to be upgraded at the cost of the applicant to the satisfaction of Shire of Esperance (Environmental Health Services).

12. The development hereby approved must not create community safety concerns, or otherwise adversely affect the amenity of the subject locality by reason of (or the appearance or emission of) smoke, fumes, noise, vibration, odour, vapour, dust, waste water, waste products or other pollutants.

13. The proposed operations, during and after construction, are required to comply with the Environmental Protection (Noise) Regulations 1997.

14. Only three bedrooms within the dwelling are permitted to be occupied as part of the Short Term Accommodation or alternatively access to and within the Holiday Home shall be subject to compliance with AS 1428 – Design for access and mobility.

15. Prior to Commencement of Use in accordance with Clause 78D(1) of the Deemed Provisions a bushfire attack level assessment is required to be prepared by an Accredited BAL Assessor and any upgrades required by the determined bushfire attack level are to be undertaken. A copy of the bushfire attack level assessment is to be provided to Shire of Esperance (Planning Services).

16. This approval is to be reviewed after 12 months and any non-compliance with the conditions brought to the attention of the local government as a result of an inspection or report of local government staff, a police report or by a member of the public will result in the development approval lapsing.

17. This planning approval relates to the land the subject of the application and the applicant only, and cannot be assigned to any other person or transferred to any other property or premises.

AND the following advice notes:

1. The development is to comply with the Building Code of Australia, Building Act 2011, Building Regulations 2012 and the Local Government Act 1995.

2. In relation to condition 5 written evidence is required to demonstrate compliance with the condition. Below is some general information in regards to fire safety, health and amenity, and safe movement and access, this is to assist you with some of the minimum building code requirements:

An emergency response plan (i.e. fire escape route maps) is required to be clearly displayed in a conspicuous location within the dwelling, plus:

· A hard wired smoke alarm must be installed on or near the ceiling;

(a) in every bedroom; and

(b) in every corridor or hallway associated with a bedroom, or if there is no corridor or hallway, in an area between the bedrooms and the remainder of the building; and

· A fire extinguisher, in a clearly visible location, is to be maintained in proper working order as prescribed in AS 1851; and

· Outside barbeques are to be gas or electric.

3. In relation to condition 14 should the bedrooms available for accommodation exceed 3 then the dwelling will need to be upgraded to accommodate persons with a disability, this means compliance with AS 1428 – Design for access and mobility.

4. It is the responsibility of the developer to search the title of the property to ascertain the presence of any easements and/or restrictive covenants that may apply.

5. Horizon Power has requested the Shire to advise Applicants that Horizon Power has certain restrictions regarding the installation of conductive materials near its network assets. Applicants are advised to contact Horizon Power’s Esperance office to ascertain whether any of Horizon Power’s restrictions affect their proposed development.

6. The approved development is required to comply with the following legislation (as amended from time to time):

· Health (Miscellaneous Provisions) Act 1911

· Occupational Safety and Health Regulations 1996

· Sewerage (Lighting, Ventilation & Construction) Regulations 1971

· Environmental Protection (Noise) Regulations 1997

· Food Act 2008 and Food Regulations 2009

· Health Act (Laundries and Bathrooms) Regulations 1971

7. The development the subject of this planning approval is required to comply with the Shire Esperance Health Local Laws 2009.

8. The developer is to liaise with Shire of Esperance (Statutory Compliance) to determine any requirement for additional approvals for any signage proposed to be erected on site.

This option approves the development, and is consistent with the Scheme and Council’s commitment to providing opportunities for new and developing businesses. As noted however, some of the objections raised by neighbours are valid. To protect the applicant, clients, neighbours and Council, the exercise of this option depends entirely on rigorous application and enforcement of the conditions of approval to ensure the development is not used without addressing previously neglected risks; especially those related to the threat posed by bushfires.

This option is recommended by officers on the understanding that compliance with the conditions will result in those risks being addressed by the applicant.

Option 3

That Council lay development application 10.2018.3985.2 for a Holiday House at Lot 42 (309) Twilight Beach Road, West Beach on the table pending supply of a bushfire attack level assessment prepared by an Accredited BAL Assessor

The bushfire attack level assessment is critical to safety and as it will likely be a factor that determines building modifications that represent one of the greatest expense considerations to the applicant. As such, it should not inconvenience the applicant at all to provide that information to Council. Though it should be noted that there could be inconvenience and possible cost to the applicant in delaying a Council decision, a more rigorous compliance management plan to ensure all conditions are addressed will come at some cost to the ratepayers.

The recently released WAPC position paper (noted below) will be critical in guiding development of council policy in the context of this type of development in the future so it could be helpful to Council if this information is available and a revised policy position is adopted before any decision is made in relation to this application also.

It should be noted that should either Option 1 or Option 2 be taken there is a right of Appeal to the State Administrative Tribunal.

Consultation

The application was referred to adjoining landowners between 25^th November 2019 and 11^th December 2019. Three objections were received.

Financial Implications

N/A

Asset Management Implications

Nil

Statutory Implications

Local Planning Scheme No. 24

Planning and Development (Local Planning Schemes) Regulations 2015

Policy Implications

EXT 004: Applications Lodged by Staff or Elected Members

Any application that is lodged by an Elected Member is to be referred to Council for determination, except for an application:

· That is for that person’s own place of residence or expansion/upgrading of a place of business that was previously approved and satisfies the objectives and development standards in:

o Local Planning Scheme;

o The Acceptable Development provisions of the Residential Design Codes, and

o Any relevant adopted Planning Strategy, Local Planning Policy and/or Local Law.

· For a minor modification to an approved plan;

· An extension of time for a planning consent when there has been no circumstantial change other than the expiration of time;

· For amalgamation of lots or realignment of boundaries.

Although the landowner and applicant is Marc Payne the application was lodged by Councillor Shelley Payne (who is named as the contact person on the application form) and is for a new application (albeit related to an existing approval) it is referred to Council for determination.

A reviewed Holiday Homes Local Planning Policy is also expected to be considered by Council at the February Ordinary Meeting of Council. The Policy has been examined in the light of the Western Australian Planning Commission Position Statement: Tourism land uses in bushfire prone areas dated November 2019.

Strategic Implications

Strategic Community Plan 2017 - 2027

Built Environment

New developments enhance the existing built environment

Facilitate and guide high quality, compliant and efficient building and development across the Shire

Environmental Considerations

Nil

Attachments

a ⇩.	Submission 1
b ⇩.	Submission 2
c ⇩.	Submission 3

Officer’s Recommendation

That Council approve development application 10.2018.3985.2 for approval of a Holiday House at Lot 42 (309) Twilight Beach Road, West Beach subject to the following conditions:

2. This approval supersedes Development Approval 10.2018.3985.1 and Development Approval 10.2017.3632.1.

4. The approved short term accommodation must not display a sign exceeding 0.2 square metres in area.

5. Lighting to assist evacuation and smoke alarms must be hard wired to mains power and be installed in the rooms and associated areas in accordance with Part 3.7 of the Building Code of Australia.

7. The driveway/accessway shall be constructed and maintained to an all-weather standard (e.g. gravel, crushed rock) to facilitate access to the development by 2 wheel drive vehicles.

8. All stormwater and drainage run off from all roofed and impervious areas is to be retained on-site to the satisfaction of the Shire of Esperance (Building Services).

13. The proposed operations, during and after construction, are required to comply with the Environmental Protection (Noise) Regulations 1997.

17. This planning approval relates to the land the subject of the application and the applicant only, and cannot be assigned to any other person or transferred to any other property or premises.

AND the following advice notes:

1. The development is to comply with the Building Code of Australia, Building Act 2011, Building Regulations 2012 and the Local Government Act 1995.

a. An emergency response plan (i.e. fire escape route maps) is required to be clearly displayed in a conspicuous location within the dwelling, plus:

3. A hard wired smoke alarm must be installed on or near the ceiling;

i. in every bedroom; and

ii. in every corridor or hallway associated with a bedroom, or if there is no corridor or hallway, in an area between the bedrooms and the remainder of the building; and

iii. on each other storey.

4. A fire extinguisher, in a clearly visible location, is to be maintained in proper working order as prescribed in AS 1851; and

5. Outside barbeques are to be gas or electric.

6. In relation to condition 14 should the bedrooms available for accommodation exceed 3 then the dwelling will need to be upgraded to accommodate persons with a disability, this means compliance with AS 1428 – Design for access and mobility.

7. It is the responsibility of the developer to search the title of the property to ascertain the presence of any easements and/or restrictive covenants that may apply.

8. Horizon Power has requested the Shire to advise Applicants that Horizon Power has certain restrictions regarding the installation of conductive materials near its network assets. Applicants are advised to contact Horizon Power’s Esperance office to ascertain whether any of Horizon Power’s restrictions affect their proposed development.

9. The approved development is required to comply with the following legislation (as amended from time to time):

a. Health (Miscellaneous Provisions) Act 1911

b. Occupational Safety and Health Regulations 1996

c. Sewerage (Lighting, Ventilation & Construction) Regulations 1971

d. Environmental Protection (Noise) Regulations 1997

e. Food Act 2008 and Food Regulations 2009

f. Health Act (Laundries and Bathrooms) Regulations 1971

10. The development the subject of this planning approval is required to comply with the Shire Esperance Health Local Laws 2009.

11. The developer is to liaise with Shire of Esperance (Statutory Compliance) to determine any requirement for additional approvals for any signage proposed to be erected on site.

Voting Requirement Simple Majority

Ordinary Council: Agenda

28 January 2020 Page 54

Item: 12.1.2

Development Application - Caravan Park Infrastructure - Lot 1745 Merivale Road, Merivale

Author/s	Peter Wilks	Senior Planning Officer
Authorisor/s	Richard Hindley	Manager Strategic Planning & Land Projects

File Ref: D20/149

Applicant

Nathan Lang on behalf of Gregory W Hill

Location/Address

Lot 1745 Merivale Road, Merivale

Executive Summary

For Council to consider Development Application 10.2019.4143.2 for Caravan Park Infrastructure at Lot 1745 Merivale Road, Merivale.

Recommendation in Brief

That Council resolve to approve Development Application 10.2019.4143.2 for Caravan Park Infrastructure at Lot 1745 Merivale Road, Merivale subject to conditions.

Background

Development Application 10.2019.4143.1 for a Nature Based Caravan park at Lot 1745 Merivale Road, Merivale was lodged with the Shire of Esperance on 27 June 2019. The application was subsequently advertised publicly on the Shire website for a period of two weeks between 31 July 2019 and 14 August 2019. Letters were also sent out to State Government Agencies. At the end of the advertising period, no objections were received and the application was approved.

Complaints were later received from adjoining and nearby landowners on grounds that they had not been consulted.

When a second application for Caravan Park Infrastructure was submitted on 27 November 2019 the application was advertised to the surrounding landowners for comments. Two objections were received as a result of this advertising and as such the application has been placed before Council for determination.

It is also noted that in the time since the first approval was issued that the Department of Planning, Lands and Heritage has released a position statement clarifying requirements for Caravan Parks and Tourism providers.

Officer’s Comment

Lot 1745 Merivale Road, Merivale is zoned Rural and is 982.6807 hectares in size. Caravan Park is an ‘A’ use as per Local Planning Scheme No. 24.

Objection:	Officers Comment:
Lack of a full-time caretaker on-site.	Noted. Recent fires in the area have highlighted the need for caravan parks and tourism providers to have a caretaker on-site to allow prompt response to emergencies. Provision of a caretaker will help ensure public safety in the event of a fire or other emergency requiring evacuation of the caravan park, a need to ensure cleanliness at the caravan park, and a need to ensure the separation and safe operation of both the caravan park and farming activities on the site and on adjoining properties, as well as enforcing rules regarding pets, firearms and drones. Verbal discussions between Mr Hill and Planning Services on 6 January 2020 indicated that Mr Hill planned to have a Camp Host/Caretaker resident on the property during peak times (November to April) with a rotation of other staff available at other times in the year. Mr Hill also indicated that he may in the future seek to place a caretaker year round depending on demand and need. This arrangement is satisfactory to Planning Services as it provides for a caretaker/staff member to be on-site during the peak season/fire season for Esperance.
Biosecurity concerns.	Noted. Biosecurity is not normally a concern for Local Government. Control of disease (such as Foot and Mouth and African Swine Fever) from out of state or international sources is the responsibility of Customs and Quarantine. Control of weeds and pest species is the responsibility of the Department of Biodiversity, Conservation and Attractions and the landowners in question. While Planning Services acknowledges the risk to biosecurity posed by having a Caravan Park on the same site as a farm, it is the position of Planning Officers that refusing the application on grounds of biosecurity risk is not feasible as other vectors for the spread of disease, weeds and pest species already exist in regards to tourists moving through and staying in the Shire of Esperance as well as natural routes, such as seeds spread by migratory birds. Refusing the application would only reduce the risk, it would not remove the risk entirely.
Impact on Dunns Rock Road.	Noted. Dunns Rock Road is split into two portions for maintenance purposes. All portions to the north of the National Park are maintained by the Shire of Esperance, while all portions of Dunns Rock Road in the National Park are the responsibility of the Department of Biodiversity, Conservation and Attractions. It is acknowledged that an increase in visitors will likely lead to an increase in incidents along Dunns Rock Road, however there is some likelihood that the presence of a Caravan Park will reduce the number of individuals asking nearby farmers for assistance.
Insurance and Occupational Health and Safety Issues from a caravan park being located on the same site as an active farm.	Noted. Planning legislation does not require any degree of separation between land uses such as Caravan Parks and Agricultural activities. It is the responsibility of the landowner to obtain any and all appropriate insurances and to properly manage both the caravan park and the farm. A condition has been included with the approval for a copy of the public liability insurance to be provided to the Shire of Esperance.
Request for buffer distance from fence line.	Verbal discussions with Mr Hill on 6 January 2020 indicated that he would not accept a fixed buffer distance from the adjoining property.
Pets	Mr Hill has indicated that pets will not be permitted as part of the Caravan Park.

Consultation

The application was referred to adjoining and affected landowners between 2 December 2019 and 16 December 2019. Two objections were received.

Financial Implications

Application fees totalling $125.00 were received as part of this application.

Asset Management Implications

Nil

Statutory Implications

The statutory implications arising from this report are:

· Planning and Development Act 2005

· Local Planning Scheme No. 24

Policy Implications

Nil

Strategic Implications

Strategic Community Plan 2017 - 2027

Built Environment

New developments enhance the existing built environment

Facilitate and guide high quality, compliant and efficient building and development across the Shire

Environmental Considerations

Both objectors have raised the issue of biosecurity as part of their objections. While both objectors focus on livestock disease, consideration also needs to be given to the spread of weeds, pest species and other forms of disease.

Biosecurity is not normally a concern for Local Government. Control of disease (such as Foot and Mouth and African Swine Fever) from out of state or international sources is the responsibility of Customs and Quarantine. Control of weeds and pest species is the responsibility of the Department of Biodiversity, Conservation and Attractions and the landowners in question.

While Planning Services acknowledges the risk to biosecurity posed by having a Caravan Park on the same site as a farm, it is the position of Planning Officers that refusing the application on grounds of biosecurity risk is inappropriate as Council has no power to make such a determination. Even if it was lawful for Council to make such a determination, it is not feasible as other vectors for the spread of disease, weeds and pest species already exist in regards to tourists moving through and staying in the Shire of Esperance as well as natural routes, such as seeds spread by migratory birds. Refusing the application would only reduce the risk a small amount, it would not remove the risk entirely.

Attachments

a ⇩.	Plans
b ⇩.	Objection 1
c ⇩.	Objection 2

Officer’s Recommendation

That Council resolve to approve Development Application 10.2019.4143.2 for Caravan Park Infrastructure at Lot 1745 Merivale Road, Merivale subject to the following conditions:

2. The land and buildings the subject of this approval shall be used for the purposes of Caravan Park only and for no other purpose unless otherwise approved in accordance with the provisions of Local Planning Scheme No. 24 (refer attached definition as extracted from Schedule 1 – Definitions of LPS 24).

a. Caravan Park means premises that are a caravan park as defined in the Caravan Parks and Camping Grounds Act 1995 section 5(1);

3. A caretaker, camp host or staff member is to be on-site and available at all times during the peak tourist season between November and April. At other times of the year a staff member is to be contactable and able to deal with any issues in a prompt manner.

4. A GPS map of the proposed walking trails/areas is to be provided to Shire of Esperance (Planning Services) once it has been marked out.

5. A copy of the public liability insurance is to be provided to the Shire of Esperance.

6. During construction stage, adjoining lots are not to be disturbed without the prior written consent of the affected owner(s).

7. Any outbuildings or structures on the site are not to be used for the purposes of human habitation unless otherwise approved in writing by the Shire of Esperance.

8. The vehicle crossover is to be constructed and drained to the satisfaction and specifications of the Shire of Esperance (Asset Management Division) – refer enclosed vehicle crossover application form. The crossover is to include provision of a culvert and the sight lines are to be cleared and maintained.

9. A minimum of one dedicated visitor car parking bay are to be provided on-site for every twenty short-stay sites in accordance with the requirements of Australian Standard AS2890.1:2004 Parking Facilities – Off-street Car Parking.

10. All accessways shall be constructed and maintained to an all-weather standard (e.g. gravel, crushed rock) to facilitate access to the development by 2 wheel drive vehicles. The accessways are to possess adequate drainage. Sand Tracks are not permitted.

11. All vehicle access ways shall be maintained for their stated purpose at all times and shall not be used for parking, display or general storage purposes.

12. All delivery vehicles must be located entirely on the site during loading and unloading of goods associated with the use of the site.

13. All stormwater and drainage run off from all roofed and impervious areas is to be retained on-site to the satisfaction of the Shire of Esperance (Asset Management Division).

14. The provision of all services, including augmentation of existing services, necessary as a consequence of any proposed development shall be at the cost of the developer and at no cost to the Shire of Esperance.

15. The approved development shall provide a supply of potable water adequate to meet the needs of the development. A building permit is required for a water storage tank with a capacity of over 5,000 Litres.

16. Prior to any application for a Building Permit or BUILDING APPROVAL BEING RECEIVED, an application to construct or install an apparatus for the treatment of sewage and the disposal of effluent and liquid wastes must be submitted for the approval of the Shire of Esperance (Health Services), in accordance with the Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974.

17. The approved development is to comply with the provisions of Australian Standard 3959 – Construction of Buildings in Bushfire Prone Areas.

18. The development hereby approved must not create community safety concerns, or otherwise adversely affect the amenity of the subject locality by reason of (or the appearance or emission of) smoke, fumes, noise, vibration, odour, vapour, dust, waste water, waste products or other pollutants.

19. All fencing shall be in accordance with the Shire of Esperance Local Law Relating to Fencing.

20. The works involved in the implementation of the development must not cause sand drift and/or dust nuisance. In the event that the Shire of Esperance is aware of, or is made aware of, the existence of a dust problem, measures such as installation of sprinklers, use of water tanks, mulching, or other land management systems as appropriate may be required to be installed or implemented to prevent or control dust nuisance, and such measures shall be installed or implemented within the time and manner directed by the Shire of Esperance (Environmental Health Services).

21. Rubbish enclosure areas adequate to service the development and screened from public view are to be constructed and provided in accordance with the Shire of Esperance Health Local Laws 2009 prior to the occupation or use of the development to the satisfaction of the Shire of Esperance (Environmental Health Services).

22. The proposed operations, during and after construction, are required to comply with the Environmental Protection (Noise) Regulations 1997.

23. Fencing and barriers are to be provided to prevent livestock and wildlife from accessing any bore associated with the Nature Based Park to prevent contamination of water supplies.

24. The lack of potable water available to the site is to be reflected in the advertising material, on prominent signage and at each water tap within the facility.

25. Advertising material is to reflect that lighting is limited to areas associated with on-site amenities and that visitors will need to bring their own lighting to travel to the amenities at night

26. Camp sites further than 90m from a toilet are to be used only by self-contained vehicles with their own toilets.

27. Adverting material is to reflect that potable water, greywater disposal, shower, solid waste disposal and laundry facilities will not be provided at the facility and are to include the location of the public dump point in Esperance.

28. Lime Road is to be used for emergency access or egress only.

29. If Lime Road is to be used for access purposes other than emergency access, it is to be upgraded at the cost of the applicant to the satisfaction of Shire of Esperance (Asset Management Division).

30. Additional passing bays or an alternative way to manage traffic on the one way 4 metre proposed internal camping loop road to allow easy and safe movement of vehicles.

31. PRIOR TO COMMENCEMENT OF USE a management plan for the prevention and/or control of Phytophthora Dieback is to be submitted to and approved by the Shire of Esperance and subsequently implemented.

32. Installation of road directional signage or safety signage on Shire Roads is to be installed by the Shire of Esperance at the cost of the applicant.

33. The caravan park hereby approved is not to be utilised by persons with pets.

AND the following advice notes:

1. THIS IS NOT A BUILDING PERMIT. An application for a building permit is required to be submitted and approved by the Shire of Esperance (Building Services) prior to any works commencing on-site.

2. The development is to comply with the Building Code of Australia, Building Act 2011, Building Regulations 2012 and the Local Government Act 1995.

3. It is the responsibility of the applicant to ensure that building setbacks correspond with the legal description of the land. This may necessitate re-surveying and re-pegging the site. The Shire of Esperance will take no responsibility for incorrectly located buildings.

4. It is the responsibility of the developer to search the title of the property to ascertain the presence of any easements and/or restrictive covenants that may apply.

5. The developer is to liaise with Shire of Esperance (Statutory Compliance) to determine any requirement for additional approvals for any signage proposed to be erected on site.

6. The Shire of Esperance understands that the subject land may contain Proteaceae Dominated Kwongkan Shrubland which is a matter of national environmental significance. A person proposing to take an action that is likely to have a significant impact on a matter of national environmental significance must refer their proposal to the Department of the Environment and Energy (Commonwealth) for assessment and approval under the Environment Protection and Biodiversity Conservation Act 1999 before it can proceed. Substantial penalties apply to a person who takes such an action without approval. If you are uncertain about which matters of national environmental significance might be present, a Protected Matters Report can be created at http://www.environment.gov.au/epbc/protected-matters-search-tool. This report will list all matters of national environmental significance that may occur in the proposed development area.

Not all actions affecting matters protected by the Act will have a significant impact and require approval. Guidelines for determining if the impact of an action is likely to be significant are available from the Department's website at www.environment.gov.au/epbc/guidelines-policies.html. If you have any questions about your obligations under the Environment Protection and Biodiversity Conservation Act 1999, or wish to discuss your proposal, you may contact the Department of the Environment and Energy. Further information, including contact details, is available at: http://www.environment.gov.au/epbc/publications/pre-referral-meeting-guidance.

7. The development the subject of this development approval is required to comply with the Shire Esperance Health Local Laws 2009.

8. The development the subject of this development approval must comply with the Environmental Protection Act 1986 and the Environmental Protection (Unauthorised Discharge) Regulations 2004 in relation to discharges into the environment.

9. The potable water supply for the proposed caravan park is proposed to be sourced from the property; from a bore located in shallow perched groundwater. A water source such as this is vulnerable to contamination. It is unknown what the recharge area for the bore is, but as the surrounding land uses include farming, there is a risk that the water source may be contaminated with fertilisers, pesticides and pathogens from farm animals. Please see link below to the Department’s guidelines on private drinking water supplies https://www.water.wa.gov.au/__data/assets/pdf_file/0006/5955/82330.pdf

10. Pumping water from the shallow water table would also likely impact on the environmental values of the Boyatup suite of wetlands that are present on the property and are considered as part of the environmental assets that would attract visitors to the caravan park.

It is recommended that further investigations are undertaken to secure a protected water supply that will not impact on the wetlands on the property.

11. You may find the following links useful:

· https://www.dwg.org.au/publications-links/publications/download-info/managing-phytophthora-dieback-in-bushland/

· http://www.dieback.net.au/

· https://www.environment.gov.au/system/files/resources/4b2a6210-af44-4672-871c-75a8cdc58f56/files/kwongkan-ec-info-guide-faweb.pdf

12. Please be aware that Dunn Rock Road is not maintained and is accessible to four wheel drive vehicles only

13. In relation to Condition 14 you are advised that the Bushfire Attack Level of BAL-29 is the level to be achieved.

14. The development hereby approved is to comply with the following legislation (as amended):

· Caravan Parks and Camping Grounds Regulations 1997;

· Caravan Parks and Camping Grounds Act 1995; and

· Shire of Esperance Health Local Laws

15. A buffer distance of 50 metres from the adjoining properties to any tourist activity (such as walking trails) is recommended.

Voting Requirement Simple Majority

Ordinary Council: Agenda

28 January 2020 Page 78

Item: 12.1.3

Local Planning Scheme No. 24 - Amendment No. 5

Author/s	Richard Hindley	Manager Strategic Planning & Land Projects
Authorisor/s	Terry Sargent	Director External Services

File Ref: D20/1136

Applicant

Internal (Strategic Planning & Land Projects)

Location/Address

Shire of Esperance

Executive Summary

For Council to consider initiating Amendment 5 to Local Planning Scheme No. 24 to amend the Scheme by incorporating a range of new provisions, updating the Scheme Map to reflect omissions and changes to reserves since the gazettal of the Scheme and the introduction of a new Special Control Area to address the introduction of the Government Sewerage Policy.

Recommendation in Brief

That Council:

1. Amend Local Planning Scheme No. 24 in pursuance of Section 75 of the Planning and Development Act 2005

2. Determining that the amendment is “standard” under the provisions of regulation 35.(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 for the following reason(s):

“… (c) an amendment that is consistent with a local planning strategy for the scheme that has been endorsed by the Commission…” and;

“… (g) any other amendment that is not a complex or basic amendment…”

3. Refer Amendment 4 to the EPA under Section 81 of the Planning and Development Act 2005 and resolve to proceed to advertising of the amendment for public inspection after referral to the EPA.

Background

Notice of Final Approval of the Shire of Esperance Local Planning Scheme No. 24 (‘the Scheme’) was published in the Government Gazette on 2 August 2017. Like any such document it is subjected to statutory review and review by Council as circumstances dictate.

The proposed modifications fall into ten broad categories as follows:

1. Review of land use permissibilities;

2. Amendment of Additional Use reserves;

3. Modifying the Modification of R-Codes to clarify area of application;

4. Stipulation of a Height Limit for a Renewable energy facility

5. Deletion of Additional Uses that are not applicable or contrary to other scheme provision;

6. Modify Additional Uses to address uses and location;

7. Deletion of Special Use SU6 and modification of SU7;

8. Insertion of SU8 to reflect the proposed development by Ocean Grown Abalone;

9. Map modification to reflect the changes above and based on Reserve Management Orders; and

10. General renumbering of clauses and subclauses.

The proposed amendment is consistent with the Local Planning Strategy.

Officer’s Comment

The following is a summary of the points contained within the amendment document and for the sake of clarity, should be read with Attachment A.

Amend the Zoning and Land Use Table by making ‘Animal Establishment’ a ‘D’ use in the Rural Smallholdings zone.

‘Animal Establishment’ is currently an ‘A’ use in the ’Rural Smallholdings’ zone. Given the prevailing lot sizes in this zone it is considered that the land use can be changed to a ‘D” as advertising is of little benefit as neighbours are not impacted on by the uses.

Amend the Zoning and Land Use Table by making ‘Repurposed Dwelling’ a ‘D’ use in the Rural Residential zone.

‘Repurposed Dwelling’ is currently an ‘A’ use in the ‘Rural Residential’ zone. Given the nature of the development and Scheme controls already in place, it is considered superfluous to advertise a ‘Repurposed Dwelling’ as such it is proposed to back the land use a ‘D’ use in the zone.

Amend the Zoning and Land Use Table by making ‘Telecommunications Infrastructure’ a ‘P’ use in all zones.

State Planning Policy 5.2-Telecommunications Infrastructure (SPP5.2) applies across the State and aims to balance the need for effective telecommunications services and effective roll-out of networks, with the community interest in protecting the visual character of local areas.

Section 6 the implementation section of SPP5.2 states at Clause 6.1(b) that Telecommunications infrastructure is not designated as a ‘use not permitted’ (X) by the scheme in any zone in the zoning table. Clause 6.1(c) also states that In zones where the location of telecommunications infrastructure is supported, telecommunications infrastructure is designated as a permitted use (P) in the zoning table.

To be consistent with SPP 5.2 it is proposed to make ‘Telecommunications Infrastructure’ a ‘P’ use in all zones.

Amend the Zoning and Land Use Table by making ‘Waste Disposal Facility’ a ‘A’ use in the Rural zone.

A modification is proposed to amend the permissibility of a ‘Waste disposal facility’ as a land use in Table 4 – Zoning and Land Use Table.

The current permissibility (‘X’ in all zones) has caused the anomaly of making an existing composting facility a non-conforming use and preventing the establishment of any new composting facilities which could be an issue with any introduction of a third bin.

Introducing the land use within the ‘Rural’ zone will enable the above mentioned development to be approved subject to advertising. Development will also be under any Special Control Area which applies to the land. This gives the capacity to control the development both in terms of permissibility (approve or refuse) and the conditions that can be placed on a specific development.

Amend Table No. 2 Specified additional uses for land in local reserves in Scheme area by deleting the 2nd point in conditions for AR3 and renumbering the clause accordingly.

This amendment proposed to remove the restriction that limits the ‘Restaurant/Café’ use to only being permitted if it is mobile. Controls are retained that limits development to within designated lease areas only.

Amending Table No. 2 Specified additional uses for land in local reserves in Scheme area by inserting a new AR10.

Reserve 32048 is a Shire managed reserve that has a purpose of Hall, Boy Scouts and Girl Guides and is currently lease to the Scouts. The current inclusion of the reserve in SU6 is incompatible with the use so the revised modification takes into account the development that has occurred.

Amend Clause 26.(4) by inserting after ‘Twilight Beach Road’ the following ‘to the west of the intersection with Walker Street ’.

This amendment refines the area where a 7.5m setback is established by a provision modifying the R-Codes. Development in the excluded are will still be required to comply with the prevailing R-Code setbacks.

Amend Schedule 1 Clause 18 by inserting a new subclause as (e)

This amendment modifies the building height permissions for a Renewable energy facility is only limited by the provisions of Schedule 2 – Special Control Area No. 8.

Amend Schedule 2 by inserting a new Clause 11.

The amendment introduces Special Control Area No. 11 which provides guidance for land use and development within the modified Sewerage Sensitive Area as identified in The Analysis of Surficial Ground Water Landscapes and Hydrological Pathways linking the Ramsar Listed Lake Warden Wetlands by Tilo Massenbauer and as shown on the Scheme Map.

The revised area that is impacted on by a Sewerage Sensitive Area is to the North of Esperance buffering the lake systems as well as the groundwater dependent threatened and priority ecological communities within Pink Lake.

It should be noted that Special Control Area No. 11 works in parallel with the Government Sewerage Policy and only amends the area it applies based on a more detailed study that has been undertaken for the Esperance lakes.

Amend Schedule 3 by deleting A3.

This modification is proposed as the additional use that was first introduced into Town Planning Scheme No. 2 by Amendment No. 30 is no longer required as the use has ceased.

Amend Schedule 3 by deleting A8.

This modification proposes to delete additional use A8 that was introduced into Local Planning Scheme No. 24 by a submission during the advertising of the Scheme and as such was not referred to Statutory Agencies.

The additional use permitted by A8 is a ‘Reception Centre’ which creates issues due to the location of the lot in SCA4-P2 and SCA4-WHPZ. The use of ‘Reception Centre’ is incompatible in Priority 2 protection areas under Water Quality Protection Note 25 (WQPN 25) and as such cannot be approved and should be removed.

Amend Schedule 3 by inserting ‘Consulting Rooms’ as a ‘D’ use in the column ‘Additional Use(s)’ of A6.

This modification is proposed as ‘Consulting Rooms’ is an appropriate land use within Additional Use A6 and the range of uses that are already permitted as a ‘D’ use. This represents a relaxation of the permissibility of the use as it is an ‘A’ use in the base ‘Residential’ zone.

Amend Schedule 3 by replacing ‘Portion Lot 9002 Eleven Mile Beach Road, Pink Lake’ with ‘Portion of Lot 770 Spencer Road, Pink Lake’ in A16.

A modification is required to re-site Additional Use A16 as the uses that were introduced are not compatible with Water Quality Protection Note 25 (WQPN 25) and as such cannot be approved in their current location by the Shire without Department of Water and Environmental Regulation considering the application to be compatible with WQPN 25.

The proposed site for A16 is outside of Special Control Area No. 4 and therefore not subject to WQPN 25.

Amending Schedule 5 by deleting SU6.

Special Use SU6 was introduced into the Scheme as a result of the Town Centre Revitalisation Plan. Since this time the skate park has been partially developed within the area and the use of the Scout Hall by the Scouts has continued.

The Special Use zone is also now contrary to State Planning Policy 2.6 as it represents a significant intensification of land use within the coastal inundation and erosion area.

For these reasons it is proposed to delete SU6 from the Scheme.

Amending Schedule 5 SU7

A modification is required to correctly identify the land within SU7 as the lot has now been subdivided. To this end it is proposed to replacing ‘Part Lot 63 on DP80539’ with ‘Lot 66 on Plan 415322’ in the Description of land.

It is also proposed to delete point (a) as it is now superfluous given that subdivision has been completed. Point (b) is amended to take into account the deletion of point (a).

Amending Schedule 5 by inserting SU8

Ocean Grown Abalone are currently seeking to establish an aquaculture facility on the southern portion of Lot 50 on DP 411486 Wylie Bay Road.

The proposal is consistent with the Bandy Creek District Structure Plan which identified aquaculture as a land use within the vicinity of the proposed site.

The site had 29 species of flora identified during the flora survey. All species identified are considered to be common to the area.

Amend the Scheme Map by deleting A3 from Lot 83 Lalor Drive, Windabout.

This modification is proposed as the additional use that was first introduced into Town Planning Scheme No. 22 by Amendment No. 30 which as Gazetted on the 12 January 2001 was never developed. It is proposed to remove the additional use from the Scheme.

Amend the Scheme Map by deleting A8 from Lot 5 Downes Street, Pink Lake

This modification relates to amendment point 2.11 and reflects the change on the Scheme Map.

Amend the Scheme Map by moving A16 from Portion Lot 9002 Eleven Mile Beach Road, Pink Lake to Portion of Lot 770 Spencer Road, Pink Lake.

This modification relates to amendment point 2.12 and reflects the change on the Scheme Map.

Amend the Scheme Map by deleting SU6 from a Portion of Reserve 27318 and Reserve 32048 by reclassifying Reserve 27318 as ‘Public Open Space’ and Reserve 32048 as AR10.

This modification relates to amendment points 2.5 and 2.6 and reflects the change on the Scheme Map.

Amend the Scheme Map by rezoning a Portion of Lot 50 on DP 411486 from ‘Rural’ to ‘SU8’ and ‘Public Open Space’

This modification relates to amendment point 2.15 and reflects the change on the Scheme Map.

The proposed area of the Site proposed to be reserved as ‘Public Open Space’ is consistent with the provisions of State Planning Policy 2.6 – State Coastal Planning Policy which is incorporated by reference into the Scheme.

Amend the Scheme Map by inserting SCA 11

This modification relates to the amendment detailed in Section 2.8 of this report by showing the new Special Control Area on the Scheme Map.

Amend the Scheme Map by reclassifying Reserve 34788 and a portion of Reserve 23527 from ‘Public Open Space’ to ‘Environmental Conservation

These reserves are proposed to be reclassified from ‘Public Open Space’ to ‘Environmental Conservation’. A portion of Reserve 23527 will remain reserved for ‘Public Open Space’ consistent with the footprint of the development Helms Arboretum.

The Department of Biodiversity, Conservations and Attractions Parks and Wildlife Service have been consulted under Section 83 of the Planning and Development Act 2005 and have expressed no objections to the proposed amendment.

Amend the Scheme Map by reclassifying Reserve 4182 from ‘Public Open Space’ to ‘Environmental Conservation’

This reserve is proposed to be reclassified from ‘Public Open Space’ to ‘Environmental Conservation’.

Amend the Scheme Map by amending a portion of Lot 300 Kalgoorlie Street, Lots 2, 24, 25, 26, 628, 629, 1 Sims Street and Lot 134 on Plan 226439 from ‘Public Open Space’ to ‘Industrial Development’

The Scheme currently shows a ‘Public Open Space’ strip adjacent to the rail corridor subject to this amendment. Given the majority of land is zoned ‘Industrial Development’ a buffer is considered superfluous, restricts the future development of the land and effectively restricts access to the rail corridor. Based on this it is proposed to show the entire lots subject of this amendment point to be zoned ‘Industrial Development’.

Amend the Scheme Map by amending a portion of Lot 204 on DP 416486 from ‘Local Road’ to ‘Rural Townsite

This modification relates to a road closure and reflects the extent to the road that is being incorporated in the adjoining lot.

Amend the Scheme Map by amending both portions of Lot 55 on Plan 12843 from ‘Residential’ to ‘Local Road’

This modification relates to two parcels of land that are on one title and are used as pedestrian access ways. The classification of the subject lot as ‘Local Road’ is consistent with the objective for a ‘Local Road’ as contained in Table No. 1 – Reserve objectives.

Renumbering the clauses and any referenced clauses within the Scheme caused by either deletion, insertion or movement of a clause or subclause through this or any earlier amendment.

This modification ensures that all the numbering within the Scheme is internally consistent taking into account any deletion, insertion or movement of clauses or subclauses through this or any earlier amendment.

Consultation

A 42 day advertising period applies for amendment which will commence upon receipt of comments from the EPA.

Financial Implications

Nil

Asset Management Implications

Nil

Statutory Implications

Planning and Development Act 2005

Planning and Development (Local Planning Schemes) Regulations 2015

Local Planning Scheme No. 24

Policy Implications

Local Planning Strategy

Government Sewerage Policy

Strategic Implications

Strategic Community Plan 2017 - 2027

Built Environment

New developments enhance the existing built environment

Facilitate and guide high quality, compliant and efficient building and development across the Shire

Environmental Considerations

Nil

Attachments

a ⇨.

Local Planning Scheme No. 24 - Amendment No. 5 - Under Separate Cover

Officer’s Recommendation

That Council:

1. In pursuance of Section 75 of the Planning and Development Act 2005 amend Local Planning Scheme No. 24 by:

i. Amending Table No. 4 Zoning and Land Use Table by making ‘Animal Establishment’ a ‘D’ use in the Rural Smallholdings zone.

ii. Amending Table No. 4 Zoning and Land Use Table by making ‘Repurposed Dwelling’ a ‘D’ use in the Rural Residential zone.

iii. Amending Table No. 4 Zoning and Land Use Table by making ‘Telecommunications Infrastructure’ a ‘P’ use in all zones.

iv. Amending Table No. 4 Zoning and Land Use Table by making ‘Waste Disposal Facility’ an ‘A’ use in the Rural zone.

v. Amending Table No. 2 Specified additional uses for land in local reserves in Scheme area by deleting the 2nd point in conditions for AR3 and renumbering the clause accordingly.

vi. Amending Table No. 2 Specified additional uses for land in local reserves in Scheme area by inserting a new AR10 as follows:

No.

Description of land

Additional use

Conditions

AR10

Reserve 32048

Club Premises

1. As determined by the Local Government

vii. Amending Clause 26.(4) by inserting after ‘Twilight Beach Road’ the following ‘to the west of the intersection with Walker Street ’.

viii. Amending Schedule 1 Clause 18 by inserting a new subclause as (e) as follows:

‘(e)

The height limit of a Renewable energy facility is only limited by the provisions of Schedule 2 – Special Control Area No. 8.’

ix. Amending Schedule 2 by inserting a new Clause 11 as follows:

‘11.

SCA 11 – Modified Sewerage Sensitive Areas Special Control Area

(a) The purpose of SCA 11 is to provide guidance for land use and development within the modified Sewerage Sensitive Area as identified in The Analysis of Surficial Ground Water Landscapes and Hydrological Pathways linking the Ramsar Listed Lake Warden Wetlands by Tilo Massenbauer and as shown on the Scheme Map.

(b)

Objectives

The objectives of SCA 11 are to –

(i)

identify land that has been designated as a sewerage sensitive area;

(ii) ensure that the development and use of land does not detrimentally impact on a sewerage sensitive area; and

(iii) implement Scheme controls that are designed to mitigate any adverse effects on a sewerage sensitive area.

(c)

Application Requirements

(i) Despite any other provision of the Scheme development approval is required for all land use and development not connected to a reticulated sewerage system.

(d)

Development Requirements

(i)

Compliance with the Government Sewerage Policy.

(ii) Where a lot is also located within SCA 4 – Public Drinking Water Source Protection Areas the requirements of SCA 4 will apply in addition to the requirements of SCA 11.

Note:

The report referenced in clause 11.(a) can be found in the Shire’s Electronic document and records management system – Ref: D18/20641.’

x. Amending Schedule 3 by deleting A3.

xi. Amending Schedule 3 by deleting A8.

xii. Amending Schedule 3 by inserting ‘Consulting Rooms’ as a ‘D’ use in the column ‘Additional Use(s)’ of A6.

xiii. Amending Schedule 3 by replacing ‘Portion Lot 9002 Eleven Mile Beach Road, Pink Lake’ with ‘Portion of Lot 770 Spencer Road, Pink Lake’ in A16.

xiv. Amending Schedule 5 by deleting SU6.

xv. Amending Schedule 5 by replacing ‘Part Lot 63 on DP80539’ with ‘Lot 66 on Plan 415322’ in the Description of land and deleting point (a) and deleting ‘further’ and ‘greater than outlined in condition (a)’ in (b) in the conditions of SU7.

xvi. Amending Schedule 5 by inserting SU8 with the following:

No.

Description of land

Special use

Conditions

SU8

Ocean Grown Abalone

Portion Lot 50 on DP 411486 Wylie Bay Road, Bandy Creek

As a ‘D’ use:

 Agriculture – Intensive

 Educational Establishment

 Restaurant/café

 Renewable energy facility

As an ‘I’ use:

 Office

 Industry – Light

Other complimentary or non-defined uses considered appropriate by the local government.

a) The portion of Lot 50 on DP 411486 subject to SU8 and the adjacent area reserved Public Open Space may be subdivided from the parent lot.

b) Development is to be in accordance with Schedules 6 and 7 of the Scheme.

c) Development of pipework and incidental pumps and other service is permitted within the portion of the lot reserved as public open space.

d) All signage is to be in accordance with an adopted signs Local Planning Policy or otherwise be exempted by Schedule 10.

e) Unless exempted by subclause c) all development within SU8 shall require development approval.

xvii. Amending the Scheme Map by deleting A3 from Lot 83 Lalor Drive, Windabout as depicted on the Scheme Amendment Map.

xviii. Amending the Scheme Map by deleting A8 from Lot 5 Downes Street, Pink Lake as depicted on the Scheme Amendment Map.

xix. Amending the Scheme Map by moving A16 from Portion Lot 9002 Eleven Mile Beach Road, Pink Lake to Portion of Lot 770 Spencer Road, Pink Lake as depicted on the Scheme Amendment Map.

xx. Amending the Scheme Map by deleting SU6 from a Portion of Reserve 27318 and Reserve 32048 by reclassifying Reserve 27318 as ‘Public Open Space’ and Reserve 32048 as ‘Recreational’ and ‘AR10’ as depicted on the Scheme Amendment Map.

xxi. Amending the Scheme Map by rezoning a Portion of Lot 50 on DP 411486 from ‘Rural’ to ‘SU8’ and ‘Public Open Space’ as depicted on the Scheme Amendment Map.

xxii. Amending the Scheme Map by inserting SCA 11 as depicted on the Scheme Amendment Map.

xxiii. Amending the Scheme Map by reclassifying Reserve 34788 and a portion of Reserve 23527 from ‘Public Open Space’ to ‘Environmental Conservation as depicted on the Scheme Amendment Map.

xxiv. Amending the Scheme Map by reclassifying Reserve 4182 from ‘Public Open Space’ to ‘Environmental Conservation’ as depicted on the Scheme Amendment Map.

xxv. Amending the Scheme Map by amending a portion of Lot 300 Kalgoorlie Street, Lots 2, 24, 25, 26, 628, 629, 1 Sims Street and Lot 134 on Plan 226439 from ‘Public Open Space’ to ‘Industrial Development’ as depicted on the Scheme Amendment Map.

xxvi. Amending the Scheme Map by amending a portion of Lot 204 on DP 416486 from ‘Local Road’ to ‘Rural Townsite’ as depicted on the Scheme Amendment Map.

xxvii. Amending the Scheme Map by amending both portions of Lot 55 on Plan 12843 from ‘Residential’ to ‘Local Road’ as depicted on the Scheme Amendment Map.

xxviii.Amending the Scheme by renumbering the clauses and any referenced clauses within the Scheme caused by either deletion, insertion or movement of a clause or subclause through this or any earlier amendment.

2. Determine that the amendment is standard under the provisions of regulation 35.(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 for the following reason(s):

(b) an amendment that is consistent with a local planning strategy for the scheme that has been endorsed by the Commission;

(g) any other amendment that is not a complex or basic amendment.

3. Refer Amendment 5 to the EPA under Section 81 of the Planning and Development Act 2005 and resolve to proceed to advertising of the amendment for public inspection after referral to the EPA.

Voting Requirement Simple Majority

Ordinary Council: Agenda

28 January 2020 Page 228

Item: 12.3.7

Rates Discount - Myrup Fly-In Estate

Author/s	Shane Burge	Director Corporate Resources
Authorisor/s	Matthew Scott	Chief Executive Officer

File Ref: D20/970

Applicant

Mr Noel Willing

Location/Address

Survey Strata Plan 60076

Executive Summary

For Council to consider a request from Myrup Fly-in Estate to grant a 50% concession on rates for vacant properties owned by Myrup Fly-in Estate Pty Ltd.

Recommendation in Brief

That Council reconfirms its current position of not granting any rates discounts for properties within the Myrup Fly-in Estate Survey Strata Plan 60076.

Background

The subdivision of the Myrup Fly-in Estate came into effect on the 1^st November 2012 as a Survey Strata. A total of 43 lots were created for the purpose of providing various lots for aircraft enthusiast to house aircraft or a combination of hanger or residential accommodation. The subdivision was created around the existing private gravel airstrip and developed by Myrup Fly-In Estate Pty Ltd.

The creation of the additional lots within the subdivision has therefore created lots that are now subject to individual rates. The properties were subdivided from a property that is currently rated utilising Unimproved Values (UV). The newly created individual lots were initially therefore also rated on a UV basis under the Local Government Act 1995.

Council previously considered a discount for rates from Myrup Fly-in Estate Pty Ltd in May 2013 and resolved the following-

O0513-032

That Council grant a rate concession of 50% for the following eight lots (5,6,7,8,9,10,12,13) of the Myrup Fly-in Estate Survey Strata Plan 60076 for the period that each lot are valued under $15,000 by the Valuer General or until such time as individual development applications are approved by the Shire.

Since that time a number of the small, low value lots had since amalgamated. There are currently 32 lots within the subdivision with a mixture of lots being hanger/clubhouse (14 lots) and residential lots (18 lots).

In July 2016 Council was again asked to reconsider a 50% rates discount on all vacant land held by the Myrup Fly-in Estate Pty Ltd and resolved the following-

O0716-001

Council Resolution

That Council confirms its current position of granting a 50% rate concession on those lots within the Myrup Fly-in Estate Survey Strata Plan 60076 that are valued under $15,000 by the Valuer General.

There were two lots within the subdivision that met the criteria as set by Council to receive a 50% concession. Those being, lots 11 and 14.

During 2018 concern was raised from the Valuer General about the Myrup Fly-In Estate being rated on a UV basis rather than GRV basis, which they believed was the predominate land use. The change in method of valuation was Gazetted and approved by the Department of Local Government, Sport and Cultural Industries with the change in method of valuation becoming effective from 1 July 2018. Regardless of the method of valuation, the majority of the properties attracted minimum rates with the minimum rates amount set since the change in valuation had been the same for both GRV and UV properties.

The change in valuation method effectively made the previous resolution of Council offering a 50% discount to lots 11 and 14 due to their low valuation redundant going forward as there was no longer any UV rated properties within the Myrup Fly-in Estate. The 50% discount for the two properties was then considered by Council along with other GRV properties like Development Area 3 in July 2018 for the 2018/19 rating year. Council at that point declined to continue the 50% discount for Lots 11 and 14.

Since the decision not to continue the 50% discount for the 2018/19 year, the owner of Lot 11 has refused to make rates payment insisting that there was a 50% discount agreement with the Shire and that no reasonable explanation had been provided as to why the 50% rates discount had been withdrawn or discontinued.

Officer’s Comment

A recent submission (See Attachment A) has been received from the Myrup Fly-In Estate Pty Ltd requesting that future rate payments on unsold vacant lots held by the Myrup Fly-In Estate Pty Ltd receive a 50% discount. The Myrup Fly-In Estate currently hold 11 vacant lots since the subdivision was approved in 2012 that remain unsold. The holding costs on these properties is making it financially problematic for the developer and has requested a rates concession of 50% on the 11 lots until they are sold.

Myrup Fly-in Estate Pty Ltd is making the following three requests

1. That all future rate payment assessments on the Companies unsold vacant Lots receive a 50% discount.

2. Due to the Company having no funds, any rate payments outstanding be deferred until such time as to when the Company is successful in selling a Lot(s) and can make the payments.

3. That the interest rate applied to any outstanding debt is reduced from 11% to a realistic 5.5% more in line with today’s business loans.

Due to the low GRV valuation of each lot (apart from 4), the calculation of the rates for each lot has resulted in each lot falling under the minimum rate and therefore being charged the full minimum rate (See Attached B).

The Myrup Fly-In Estate is an abnormal subdivision within the Shire of Esperance. There are no other strata subdivisions within the Shire that are not either solely residential or office space. The best comparison is storage units which have a similar use and building restrictions as the hanger lots. Although the Shire of Esperance does not have strata storage units, some local governments around the State do offer rate concessions to strata storage units in recognition of the limited use and the planning restrictions imposed upon the strata subdivision.

The Shire of Esperance does have strata residential and office lots which currently do not receive any discount or concessions, although the difference being that these are developed lots. There are currently land developers within the Shire who are holding unsold vacant lots that are not receiving any discounts or concessions.

The only lots that receive a 50% rates discount are those lots that are un-serviced (no road access) in Sinclair commonly known as Development Area 3 and a very remote rural lot at Israelite Bay. There may well be an argument to view the Myrup Estate vacant lots similar to those in Development Area 3 due to no internal road access being maintained by the Shire, as it is maintained by the Strata Body. However, the counter argument is that rates discounts on vacant lots provides little motivation for the owners to develop the Lots into the future.

If Council did want to consider offering a discount as requested in the submission, to be fair and equitable to other individual ratepayers within the Estate that the same concessions should be granted to all ratepayers who hold similar (vacant) property types within the Estate. There are currently 17 vacant lots within the Estate that are owned by 7 different owners.

Council has previously considered the request from the Myrup Fly-In Estate and the Strata Body for a discount on vacant and low value lots within the estate. Apart from offering a discount to two low value lots for 5 years, the Council has held firm on the position (considered twice before) that all properties within the Shire of Esperance should contribute equally and fairly via minimum rates. Although now being rated under a GRV basis, nothing has changed in relation to the Myrup Fly-In Estate for the administration staff to recommend a change in the already established position by the Council.

Council consider the outstanding rates interest percentage each year as part of the budget considerations. Council made a determination during July 2019 that the interest rate for outstanding rates would be 11% for the 2019/20 year. This will again be considered by Council in the near future for the 20/21 year as part of the budget setting and rating parameters.

There are a number of options that Council could consider in relation to this request-

1. Council agree with the applicant that the vacant unsold lots owned by the Myrup Fly-in Estate Pty Ltd receive a 50% rates discount and defer outstanding rates payments until sales of land are made.

2. Council determine that the Myrup-Fly in Estate is sufficiently unique due to being a Survey Strata which the Strata Body maintain the internal road network that all vacant lots within the Myrup Fly-In Estate be offered a 50% rates discount until they are developed.

3. Council consider that the properties should be considered consistent with other properties within the Shire and regardless of ownership, development, value or size be rated on an equal basis to other GRV properties within the Shire.

As Council had previously considered this item and set parameters around the rates concessions, it is the officers recommendation to reconfirm the Council’s previous position of not offering any rates discounts on any properties within the Myrup Fly-In Estate.

Consultation

A property inspection and briefing was held with all Councillors and Senior Staff at the Myrup Fly-In Estate on the 21 June 2016.

Financial Implications

If Council was to grant a 50% discount on all the 17 vacant lots, the foregone income of providing this based upon the current minimum rates of $1,166 per assessment would be $9,911 for the 2019/20 financial year.

Asset Management Implications

Nil

Statutory Implications

Local Government Act 1995 Section 6.47

Policy Implications

Nil

Strategic Implications

Strategic Community Plan 2012-2022

Civic Leadership

4.5 Be innovative in the management of Shire operations, services, staff and resources to create a resilient and financially stable Shire.

Environmental Considerations

Nil

Attachments

a ⇩.	Myrup Fly-In Estate Unsold Lots Submission
b ⇩.	Myrup Fly-In Estate Lots

Officer’s Recommendation

That Council reconfirms its current position of not granting any rates discounts for properties within the Myrup Fly-in Estate Survey Strata Plan 60076.

Voting Requirement Simple Majority

Ordinary Council: Agenda

28 January 2020 Page 309

Item: 12.4.2

Request to remove all Rottnest Island Tea Trees from the Esperance Foreshore

Author/s	Matthew Scott	Chief Executive Officer
Authorisor/s	Matthew Scott	Chief Executive Officer

File Ref: D20/980

Applicant

Mr Doug Slater

Location/Address

Esperance Foreshore

Executive Summary

For Council to consider a request to remove all Rottnest Island Tea Trees (Melaleuca lanceolata) from the Esperance Foreshore.

Recommendation in Brief

That Council:

1. Not support the request from Mr Doug Slater to remove all the Rottnest Island Teas Trees from the Esperance Foreshore; and

2. Request the CEO to consider alternative species, should a Rottnest Island Teas Tree need to be removed or replaced (for any reason), in order to maintain the current amenity of the Esperance Foreshore.

Background

In December 2019, Councillors received a request from Mr Doug Slater, 11 The Esplanade, Esperance (the Applicant) to remove all the Rottnest Island Tea Trees from the Esperance Foreshore (Attached). The Applicant has raise concerns that if these trees are left to mature, they could grow to 10m tall and represent “a major problem for future Councils and overgrow too much of the foreshore.” The Applicant has also included several photographs of the mature trees (from other locations, not part of the Foreshore Redevelopment) as an indication of how tall this species can grow.

Similar concerns were initially raised by the Applicant in early 2015, arguing that the Albany Woolly Bushes (Adenanthos sericeus) and Rottnest Island Tea Trees (Melaleuca lanceolata), planted as part of the overall $24.5m Foreshore Redevelopment would impact on his amenity, i.e. uninterrupted views of Esperance Bay and Port area. At the time the Applicant was advised that entire foreshore planting regime was based on the Council approved foreshore masterplan, to create an undulating mixture of plants of varying shapes, colour and texture, while providing natural shade and wind protection at strategic locations. Council should note that adjacent to the Applicant’s property there are two (2) public seats with no fabricated shade structures. The Applicant was also provided advice (sourced from the landscaping designers, Hassell) that although the plants (woolly bushes and tea trees) have the potential to grow tall, the location, environment and density of plantings would restrict their growth and height. Furthermore, if they do grow excessively, they can be trimmed and pruned, which is already currently part of the annual maintenance regime of the foreshore.

Despite the concerns raised by the Applicant, a Waterfront Community and Tourist Satisfaction survey conducted in June 2015 indicated more than 85% of locals said the development met their expectations and the Esperance Foreshore Development subsequently won awards and commendations from various organisations and institutions, such as the Australian Institute of Landscape Architects WA (2016 People’s Choice Award), Architecture AU (2016 Commendation for Urban Design) and Parks and Leisure Australia (2015 Awards for Excellence, Parks and Open Spaces Development).

As the Applicant’s request was sent directly to the elected members, who have subsequently requested this item be formally considered by Council.

Officer’s Comment

From the Applicant’s correspondence, it would seem his concerns have evolved from impacting on his own amenity (view) in 2015, to the amenity to other residences and potential cost to maintain the Rottnest Island Tea Trees in the future. Shire records indicate this is the only formal complaint of this nature that has been received from local residents since 2015. The Foreshore development remains a significant draw card for visitors and highly utilised by residents. Much of this high usage is associated with the quality of the development and community amenity as a result of expert design (as indicated by the various awards won), including the current landscaping plant selection.

Prior to the Foreshore redevelopment being constructed, a Foreshore Masterplan (and associated Esperance Waterfront Integrated Landscape Design Development Report – Attached) was developed and presented to the community for comment. This plan included the types of plants and trees proposed to be planted (including Rottnest Island Tea Tree) and it understood there was very little public opposition to the proposed plan, which subsequently was implemented by Council, as part of the foreshore redevelopment.

In considering this request, Council need to consider the following:

1. Impact on community amenity on removing the Rottnest Island Tea Trees;

2. Appropriate method of removal;

3. Appropriateness of removing trees in a public open space at the request of a single individual/resident; and

4. Will this set a precedent for the future?

The Rottnest Island Tea Tree was one of several plants chosen by the foreshore designers, Hassell, to provide an undulating mixture of plants of varying shapes, colour and texture thorough out the Foreshore. Locations of the Rottnest Island Tea Tree was specifically picked to provide shade and wind protection for specific areas (seating) as an alternative to the solid shade structures on the foreshore. To provide shade and wind protection these plants are required to be taller than the surrounding shrubbery. Council has the option to remove the Tea Trees, however it then has the problem of either planting an alternative tree species, in order to provide shade and protection (which will create a similar problem raised by the Applicant) or replant another plant (Applicant’s choice being a ground cover) which will not provide shade and protection for these specific areas, thus reducing overall amenity, as this does not provide the desired outcome of the original landscaping design. In 2015 the Applicant offered to replace the trees (both woolly bushes and tea trees) with several different species; however as none of the proposed species offered provided sufficient shade or shelter to adjacent public seat(s), and therefore deemed an unacceptable compromise.

In the Applicant’s letter, there is a suggestion that the Tea Tree simply need to be cut off at the base to be removed. Advice from the Shire’s Manager of Parks and Gardens suggests this is not an appropriate method to remove the trees, as they have the potential to re-sprout/regrow from the base and dead roots left in the ground could promote root rot and plant disease. The preferred method would be to completely remove the tree, at an estimated cost of about $200 per tree (two staff plus overheads). Given the Applicants quote of 275 trees, this equates to the cost of $55,000 ($200x275). There would also be additional costs to landscape and replant the areas that have had tress removed, neither of these costs are provided for in the Shire’s current budget. On the other hand, given that the Foreshore is the Shire’s Premier Public Open Space (POS), Council has budgeted to maintain the foreshore at significantly higher standard than other parks or POS’s. As part of maintaining the foreshore all plants and trees are monitored and action (thinning, pruning and trimming) occurs to maintain the intent and outcome proposed in the initial landscaping design. Removing just the Tea Trees will not significantly reduce the annual maintenance budget of the Foreshore.

In 2015 the Shire only received 4 individual complaints (inclusive of the Applicant’s) regarding the plantings on the Foreshore (all associated with Rottnest Island Tea Trees and Albany Woolly Bushes). Similar responses were provided to all complainants, and the Shire has not received any further complaints until the recent letter from the Applicant. Given the high level of community ownership of the Foreshore, acting on the request of one resident may create considerable community tension. Even the Applicant appreciates the potential sensitivity of his request, saying, “I am aware that certain sections of the community would be aghast at cutting down trees but if it was done over a two or three year[s] period, it would not be so obvious.”

Though the Applicant does not specifically state this in his December 2019 letter, removing the Tea Trees would also resolve the 2015 concern regarding his concerns of reduced amenity (view) to his property.

The principle that property owners do not hold any rights to “a view” has been an established legal principle in Australian law since 1937. In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor, the High Court found that the owner of property did not own the views (or “spectacle”) from his or her land. This has been reinforced in subsequent decisions, including a finding by His Honour, Preston CJ who in a ruling of the New South Wales Land and Environment Court in 2008 stated in part “…a defendant may erect a building or other structure such as a fence, or plant a tree on his or her land which interferes with the neighbour’s enjoyment of their land. The building, structure or tree may…spoil the neighbour’s view …yet such interferences are not actionable as a nuisance.”

Street trees and public landscaping, power poles, sewage pump stations and even NBN cabinets all form part of the urban landscape and are installed and maintained in accordance with the various obligations of the responsible Authority, but the taste or visual preference of adjoining property owners does not impose any obligation on those agencies, this includes Local Governments. Council should note within its current Street Tree Policy (ASS 019: Street Tree), which has been recently reviewed by Council, obscuring or potentially obscuring a view (other than traffic/pedestrian sight lines), is not considered a sufficient reason to remove a tree. This is probably the closest policy position the Shire has in relation to the Applicant’s request to remove trees in public open space.

Should Council resolve to accept the Applicant’s request, this could also create a significant precedent, potentially allowing individual residents to influence (or even veto) the type of landscaping or plantings on POS, regardless of expertise or overall community benefit. If this request is supported, other residents or property owners may be encouraged to request other plant species to be removed, such the Swamp She-oaks (Casuarina obesa), Australian Pine (Casuarina equisetifolia) or even the iconic Norfolk Island Pines (Araucaria heterophylla), all which grow larger and taller than the Rottnest Island Tea Tree. Likewise, this could also create conflict between neighboring properties, should property owners have differing opinions on what trees or plants should be planted on adjacent POS. In approving this request, Council could be resolving one issue for one resident, but potentially creating other issues.

Given the above, it is the officers opinion that the request to remove all 275 Rottnest Island Tea Trees should not be supported by Council. Alternatives trees can be further investigated, should the current Rottnest Island Tea Trees need to be replaced (due to disease, damage or natural attrition), however these alternatives should continue to provide the current shade and wind protection, in order maintain the current intent and desired outcome of the original landscaping design plan. Maintaining the current status quo (ie maintaining the current plants and landscape) will ensure the community and visitors will continue to enjoy the Esperance Foreshore. Any changes should only occur if there is a demonstrated support from the wider Esperance community and foreshore users.

Consultation

Shire of Esperance Manager, Parks and Gardens.

Financial Implications

Should Council approve this request, the estimated cost to properly remove the Rottnest Island Tea Trees is estimated at $55,000 which is currently not provided for in the Foreshore Maintenance Budget. The Trees are well established (5 years old) and care needs to be taken in removing them with regards to surrounding plants, reticulation and other infrastructure. If the removal was programed over three years, there would need for an additional $18k per annum added to future years Maintenance Budget.

Maintaining the Esperance Foreshore as the Shire’s premier POS is factored into the Shire’s long term Financial Plan and POS Strategy. This includes monitoring, trimming, pruning and replacing trees and plants (not just the Rottnest Island Tea Tree) to maintain the desired outcome of the Foreshore landscaping design.

Asset Management Implications

Statutory Implications

Removing or maintaining the current Rottnest Island Tea Trees will not have significant impact on the overall asset management implications of the Esperance Foreshore.

Policy Implications

Policy ASS:019 Street Tree

Strategic Implications

Strategic Community Plan 2017 - 2027

Built Environment

Active, attractive and affordable town which the community is proud of

Create a vibrant, modern and safe built environment that reflects the community's identity

Environmental Considerations

All Plants and Trees within the Esperance Foreshore provide an environmental benefit, removal of some 275 5 year old trees is believed to have some environmental impact, however this is difficult to calculate.

Attachments

a ⇩.	Request to Remove Tea Trees - Dec'19
b ⇩.	Foreshore Design Report

Officer’s Recommendation

That Council:

1. Not support the request from Mr Doug Slater to remove all the Rottnest Island Teas Trees from the Esperance Foreshore; and

Voting Requirement Simple Majority

Description		Budget Figure	Amended Figure	Variation
Dempster Head Reserve Maintenance	W3235	5,000	25,000	20,000
Communities Environment Program		0	(20,000)	(20,000)
Net result				0

Description		Budget Figure	Amended Figure	Variation
Regional Traineeship Grant		0	(30,000)	(30,000)
Parks Maintenance	3210-540	1,228,374	1,258,374	30,000
Net result				0

Policy Name	Ref No.	Recommended Amendment
Financial Management	COR 002	Minor changes to delegated authority and term for prohibited bond investments and deposits.
Museum Park Building Lease Arrangements	COR 003	Minor wording changes
Building & Property Leases	COR 004	Include rates charge information in various categories, exempt CTA leases from being charged lease preparation fees, remove irrelevant information and amend implementation paragraph
Procurement Policy	COR 007	Inclusion of Aboriginal purchasing and exemptions. Minor wording, credit card limit changes.
Records Management	COR 009	No change to wording
Complaints Handling	COR 010	Remove references to behavioural incidents as this is included in the new Dealing with Difficult People policy. Wording changes to make clear and remove reference to feedback form as this is not used.
Debt Collection	COR 013	Minor changes to wording, amendment of pensioners and seniors point 4
Public Land Improvement Licence	COR 014	Minor word change
Computer and mobile Device Policy	COR 015	No change to wording
Centenarian waiver of rates	COR 016	No change to wording
Dealing with Difficult People		New Policy
Asset Disposal		New Policy

Committee	Vacancies	Nominations
Audit Committee	1 Community Representative	Ken Mills
Museum Management Reference Group	1 Community Representative	John Guest
Esperance Twin Towns Committee	5 Community Representatives	Phil Jones Amanda Thomas Victoria Brown
Esperance Roadwise Committee	2 Community Representative	Kaj Nieukerke Robert Dummermuth Amelia Fitzgerald
Greater Sports Ground Redevelopment Committee	5 Community Representative	David Rigney
Scaddan Restoration Reference Group	6 Community Representative	Tom Curnow Christian Siemer Kirby Maher
Esperance Visitor Centre Management Committee	3 Community Representative	Priscilla Davies
New Landfill Community Reference Group	4 Community Representative	Nil
Reconciliation Action Plan Working Group	Number of Community Representatives to be determined	Nil
Youth Advisory Council	15 Community Representatives	Nil

a ⇩.	Nomination - Audit Committee
b ⇩.	Nomination - Esperance Museum Management Committee
c ⇩.	Nominations - Esperance Twin Town Committee
d ⇩.	Nominations - Esperance Roadwise Committee
e ⇩.	Nomination - Greater Sports Ground Committee
f ⇩.	Nominations - Scaddan Restoration Reference Group
g ⇩.	Nomination - Esperance Visitor Centre Management Committee

Disclosure of Financial, Proximity or Impartiality Interests

Local Government Act 1995 – Section 5.65, 5.70 and 5.71 and Local Government (Administration) Regulation 34C

Declaration of Interest (Notes for Your Guidance)

Author/s	Mathew Walker	Director Asset Management
Authorisor/s	Matthew Scott	Chief Executive Officer

Timber Grade	Action
3	Expression of Interests to donate historic timber for projects that demonstrate community benefit

Author/s	Beth O'Callaghan	Manager Financial Services
Authorisor/s	Shane Burge	Director Corporate Resources

Author/s	Sarah Walsh	Coordinator Corporate Support
Authorisor/s	Shane Burge	Director Corporate Resources

a ⇩.	Request to renew lease
b ⇩.	Response to rent valuation

Author/s	Sarah Moroney	Corporate Reporting & Governance Officer
Authorisor/s	Shane Burge	Director Corporate Resources

Committee	Organisation
Bush Fire Advisory Committee	Department of Biodiversity, Conservation & Attractions (Ex-Officio) Bush Fire Brigades
Esperance Museum Management Committee	Esperance Bay Historical Society Esperance Mechanical Restoration Group Esperance Family History Society Esperance Museum Volunteer
Esperance Twin Towns Committee	Esperance Senior High School Esperance Lions Club
Esperance Roadwise Committee	Esperance Police Department of Education Main Roads WA St John Ambulance Department of Transport Department of Health
Greater Sports Ground Redevelopment Committee	Esperance Districts Agricultural Society Indoor Sports Stadium Management Committee Esperance District Recreation Association
Scaddan Restoration Reference Group	Scaddan Bush Fire Brigade Scaddan Golf Club Scaddan Country Club Scaddan Bowling Club Scaddan Primary School Parents & Citizens
Esperance Visitor Centre Management Committee	Tourism Esperance
New Landfill Community Reference Group	South Coast NRM Local Environmental Action Forum (LEAF) Department of Biodiversity, Conservation & Attractions (Ex-Officio)
Reconciliation Action Plan Working Group	Esperance Tjaltjraak Native Title Aboriginal Corporation Ngadju Native Title Aboriginal Corporation Esperance Nyungar Aboriginal Corporation

Author/s	Alli McArthur	Administration Officer - Executive Services
Authorisor/s	Matthew Scott	Chief Executive Officer

a ⇩.	Information Bulletin - December 2019
b ⇩.	Quarterly Corporate Performance Report - October to December 2019
c ⇩.	Register - Delegations Discharge - Corporate Resources
d ⇩.	Certificate of Appreciation - Keep Esperance Beautiful
e ⇩.	Outstanding Resolutions - Quarterly Report
f ⇩.	Letter of Appreciation - Runner Up Dux Award - Celia Rolland - Esperance Primary School