Ordinary Meeting of Council 13 December 2017

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13.4 APPLICATION FOR RETAINING WALLS AND CIVIL WORKS ASSOCIATED WITH THE CONSTRUCTION OF A PERMANENT FIREBREAK - LOT 722 (NO.40) DOUGLAS ROAD, HENLEY BROOK (DA216-17)

Ward: (Swan Valley/Gidgegannup Ward) (Statutory Planning)

Disclosure of Interest: Nil.

Authorised Officer: (Executive Manager Planning and Development)

KEY ISSUES

• A retrospective application has been received for existing retaining wall structures as well as civil works associated with the construction of a permanent firebreak at Lot 722 (No.40) Douglas Road, Henley Brook.

• The application was deferred at the Ordinary Meeting of Council of 18 October 2017 in order to allow for site meeting between staff, interested Councillors, the applicant and the objector. That meeting occurred on Friday 24 November 2017.

• The application requires dual approval by the City of Swan and the Western Australian Planning Commission pursuant to Clause 30A(2) a (ii) of the Metropolitan Region Scheme due to the developments proximity to the Swan River Development Control Area.

• The unapproved structures include two, over 100m long retaining walls. The retaining walls vary in height, reaching a maximum height of 350mm from ground level. The applicant is proposing to asphalt the area nominated as the driveway to the firebreak, with 35mm red asphalt and to install a 18m wide firebreak to run the extent of the lot which is to be cut and filled with road base. The applicant is also seeking approval to alter the existing drainage easement infrastructure to achieve this outcome.

• The application was advertised to adjoining landowners which attracted an objection relating to the disruption of floodwater flow, minor flooding, alleged site works including the filling of land as well as alleged use of the firebreak as a vehicle parking area for a reception centre.

• City staff consider that surface drainage is not likely to be impacted by the proposed and existing works as the applicant is seeking to cut then fill to match the existing land contours.

• Referral to the Department of Water and Environment Regulation (Previously Department of Water) has confirmed that the works are not considered obstructive to major flood flows.

• The City does not have an application for a reception centre on the site and the works are considered incidental to the existing single house.

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• As the works are contained to the rear of the lot and will be flush with the land level City staff does not consider the works detrimental to the amenity of the locality or adjoining landowners.

It is recommended that the Council approve the application for Retaining Walls and Civil Works associated with the Construction of a Permanent Firebreak - Lot 722 (No.40) Douglas Road, Henley Brook works and forward the resolution on to the Western Australian Planning Commission.

AUTHORITY/DISCRETION

LPS17 (cl. 8.4)

The Council has the discretion in accordance with Clause 8.4.1 of Local Planning Scheme No.17 to grant approval to a use or development already commenced or carried out regardless of when it has commenced or carried out.

Such approval has the same effect for all purposes as if it had been given prior to the commencement or carrying out of the development, but provided that the development complies with the provisions of the Scheme as to all matters other than the provisions requiring the Local Government’s approval prior to the commencement of development.

In accordance with Clause 8.4.2 of Local Planning Scheme No.17 an approval by the local government of an existing development does not affect the power of the local government to take appropriate action for breach of the Scheme or the Act in respect of the commencement or carrying out of development without planning approval.

2015 Regulations (cl.65 & cl.68(2))

Pursuant to cl.65 of the Planning and Development Local Planning Schemes) Regulations 2015 Council has discretion to determine an application for an existing unauthorised development in accordance with cl.68(2) of the Planning and Development Local Planning Schemes) Regulations 2015. As such, Council may:

• grant development approval without conditions; or • grant development approval with conditions; or • refuse to grant development approval.

RIGHT OF REVIEW

LPS17 (cl.10.10)

In accordance with cl.10.10 of Local Planning Scheme No.17 if the applicant is aggrieved with the decision of the Council, a right of appeal may exist in accordance with Part 3 of the State Administrative Tribunal Act 2004 Part 14 of the Planning and Development Act 2005.

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2015 Regulations (cl.76(2)

In accordance with cl.76(2) of the Planning and Development Local Planning Schemes Regulations 2015 an affected person (meaning the applicant of the subject development application or the owner of the subject land) may apply to the State Administrative Tribunal for a review of the reviewable determination in accordance with the Planning and Development Act 2005 Part 14.

PROPOSAL AND PROPERTY DETAILS The proposal includes single limestone block high retaining walls and proposed fill including asphalt and 'road base'. The maximum height of the retaining wall is to 350mm, serving as a limestone 'kerb' for the firebreak.

Applicant: John Mathew Joyce (Jack Joyce) Owner: John Mathew Joyce (Jack Joyce) Zoning: LPS17 - Swan Valley Rural MRS - Rural Strategy/Policy: Building and Development Standards - Rural Zones

Swan Valley Planning Act 1995 Development Scheme: LPS 17 Existing Land Use: Single House Lot Size: 4.5ha Lot Area: 44,552m2 Use Class: Incidental domestic structure (to Single House) “P”

PUBLIC CONSULTATION

Public consultation was completed as per the following:

Duration: • 14 days from 28 March 2017 to 11 April 2017

Method: • Notification Letters to nearby landowners

Submissions received:

• 1 objection

The concerns raised were:

• The impact the works will have relating to floodwater flow

• The impact the works will have on flooding

• Alleged site works which have already altered the land levels

• The potential future use of the firebreak as vehicle parking

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CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

Department of Water and Environment Regulation

The application was referred to the Department of Water and Environment Regulation (DWER) for comments relating to development within the floodway as well as with respect to the site having a memorandum on the title as a potentially contaminated site.

ASSESSMENT

Zoning & Permissibility of Land Use

Then subject property is zoned Rural under the Metropolitan Region Scheme and Swan Valley Rural under the City’s Local Planning Scheme No.17.

The proposed Retaining walls and civil works associated with the construction of a permanent firebreak is classified as incidental domestic structures/works associated with the approved single house pursuant to Local Planning Scheme No.17 and as such is a 'P' use within the Swan Valley Rural zone.

The scheme objectives of the Swan Valley Rural zone refer to the Swan Valley Planning Act Area B Objectives. These are:

1. The protection of viticulture.

2. The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands.

3. The encouragement of tourist facilities provided that they do not detract from the rural character of the area.

4. The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area.

5. The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan.

6. The limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area.

7. The compatibility of design, siting and landscaping with the character of the area.

8. The discouragement of uses that is incompatible with the rural character and traditional agricultural activities of the area.

9. The extraction of basic raw materials so far as it is compatible with the character and amenity of the area and subject to the rehabilitation of the affected land.

10. The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.

11. The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area.

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Given the nature of the works, the only applicable points from the above are Points 7 and 11. As the extent of the works is confined behind existing vegetation or existing buildings on the site, it is not considered that the development will seek an incompatible design with the area due to the minor height of the retaining walls. As the site works for the firebreak are cut into the ground, it is considered that the works will be compatible with the amenity of the area. City staff do not consider that the works will degrade the environment as the depth of the proposed cutting and filling is to be less than 300mm. Drainage City staff have confirmed that, as the works do not seek to alter the existing level of land, the development is not likely to detrimentally impact on the adjoining landowner’s natural drainage. The works to replace the adjoining landowner's access to drainage to the river as annotated on the plans are supported by the City. Fill The applicant has provided that there will be road base installed on the site for the firebreak. Due to the proximity to the river, a condition shall be recommended that the works are to be flush with the natural ground level and the material used for the road base shall be of an acceptable standard of the City. The allegations relating to other elements on fill on this site are not part of this application or this approval. Department of Water and Environment Regulation (DWER) Referral Advice from DWER notes that the development is not considered to be obstructive to major flows. In addition to this, referral comment forwarded by DWER notes that they have no objections to the construction of a permanent firebreak and a retaining wall at the proposed location provided that all intrusive works remain above the fill capping layer at 0.5m below ground surface. This will be placed as a condition on the approval.

OPTIONS AND IMPLICATIONS

Option 1: Council may resolve to grant approval for the Retaining Walls and Civil Works associated with the Construction of a Permanent Fire Break at Lot 722 (No.40) Douglas Road, Henley Brook, subject to conditions.

Implications: The applicant will be able to seek approval from the WAPC to commence development on the site.

This is the recommended option.

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Option 2: Council may resolve to refuse the application for the Retaining Walls and Civil Works associated with the Construction of a Permanent Fire Break at Lot 722 (No.40) Douglas Road, Henley Brook for the following reason:

1. The works are considered unacceptable in terms of drainage and will result in an undesirable disruption to major and minor flows from the Swan River. The works will further detrimentally impact on adjoining landowners surface drainage patterns.

Implications: The applicant will be required to remove the development from the site or may seek a review to the State Administrative Tribunal if aggrieved by this decision.

CONCLUSION

Approval is being sought for the already constructed retaining walls and proposed civil works in association of a permanent firebreak. Whilst the adjoining landowner has concern with respect to flooding and floodwater flow these issues are not considered to be exacerbated by the approval of these works. Advice from the City's drainage engineers supports this conclusion.

ATTACHMENTS

Aerial photo

Site plan

Elevation plan 1

Elevation plan 2

Retaining wall plan

Site photos 1 - 6

STRATEGIC IMPLICATIONS

Nil

STATUTORY IMPLICATIONS

Local Planning Scheme No.17

Planning and Development Local Planning Schemes) Regulations 2015

Building and Development Standards - Rural Zones

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FINANCIAL IMPLICATIONS

Nil

VOTING REQUIREMENTS

Simple majority

RECOMMENDATION

That the Council resolve to:

1) Pursuant to cl.68(2) of the Planning and Development Local Planning Schemes) Regulations 2015 approve the Retaining Walls and Civil Works associated with the Construction of a Permanent Firebreak at Lot 722 (No.40) Douglas Road, Henley Brook subject to the following conditions:

1. The proposed firebreak is to be no higher and is to sit flush to the natural ground level so as to ensure no impact on surface drainage patterns from abutting and adjoining properties.

2. Details regarding the proposed materials for the firebreak must be submitted and approved by the City of Swan prior to any works commencing on site to ensure no ground water contamination occurs.

3. No excavation shall occur below 0.5m from the natural ground level.

4. Prior to works commencing on the site, detail of the proposed alteration of the drainage piping in the north western portion of the allotment must be submitted and approved by the City of Swan.

5. Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval of the City.

ADVICE NOTES Standard advice notes apply.

2) Advise the applicant/owner of the resolution of Council and relevant advice notes pertaining to the approval.

3) Forward the City's determination to the Western Australian Planning Commission for consideration.

4) Advise those that lodged a submission of the Council's decision accordingly.

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MOTION that the Council resolve to adopt the staff recommendation with the addition of the following Condition:

The applicant is to install screening trees along the north western corner boundary with No. 49 (Lot 889).

(Cr Bailey – Cr Henderson)

RESOLVED (12/1) TO:

1) Pursuant to cl.68(2) of the Planning and Development Local Planning Schemes) Regulations 2015 approve the Retaining Walls and Civil Works associated with the Construction of a Permanent Firebreak at Lot 722 (No.40) Douglas Road, Henley Brook subject to the following conditions:

1. The proposed firebreak is to be no higher and is to sit flush to the natural ground level so as to ensure no impact on surface drainage patterns from abutting and adjoining properties.

2. Details regarding the proposed materials for the firebreak must be submitted and approved by the City of Swan prior to any works commencing on site to ensure no ground water contamination occurs.

3. No excavation shall occur below 0.5m from the natural ground level.

4. Prior to works commencing on the site, detail of the proposed alteration of the drainage piping in the north western portion of the allotment must be submitted and approved by the City of Swan.

5. The applicant is to install screening trees along the north western corner boundary with No. 49 (Lot 889).

6. Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval of the City.

ADVICE NOTES Standard advice notes apply.

2) Advise the applicant/owner of the resolution of Council and relevant advice notes pertaining to the approval.

3) Forward the City's determination to the Western Australian Planning Commission for consideration.

4) Advise those that lodged a submission of the Council's decision accordingly.

For: Crs Bailey, Haynes, Henderson, Johnson, Jones, Kiely, Lucas, Lyndon-James, McCullough, McDonnell, Scanlan and Zannino

Against: Cr McNamara

DISCLAIMER: Information shown hereon is a composite of informationfrom various different data sources. Users are warned that theinformation is provided by the City of Swan in this format as a generalresource on the understanding that it is not suitable as a basis fordecision making without verification with the original source.

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