DETAILS OF THE PROPOSAL

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3.7 RETROSPECTIVE CLEARING OF NATIVE VEGETATION - LOT 183 (NO.3091) GREAT NORTHERN HIGHWAY, BULLSBROOK (DA609-17)

Ward: (Pearce Ward) (Statutory Planning) Disclosure of Interest: Nil.

Authorised Officer: (Executive Manager Planning and Development)

KEY ISSUES

• The proponent is seeking retrospective approval for the clearing of 41.3ha, of native vegetation at Lot 183 (No.3091) Great Northern Highway, Bullsbrook.

• The subject property is zoned 'Rural' under the Metropolitan Region Scheme and 'General Rural' under the City's Local Planning Scheme No.17.

• The application initially comprised of the following aspects: the retrospective clearing of native vegetation; the filling of land; and the construction of over width driveways.

• The application was advertised for public comment during which time the City received two submissions on the proposal, both objections. The objections pertained to concerns regarding stormwater management and environmental degradation as a result of the filling and clearing of vegetation components.

• The application was referred to the Department of Water and Environmental Regulation (DWER) and the Department of Biodiversity, Conservation and Attractions (DBCA).

• DBCA objected to the filling of land and any changes to the flow of the natural drainage of the land.

• DWER advised they had no objection to the proposal. The vegetation was considered by the Department as degraded, and subsequently issued a clearing permit for the clearing of native vegetation in July of 2017.

• The proponent addressed the concerns raised by the public and DBCA by removing the filling of land component from the application which subsequently alleviates drainage concerns.

• The vegetation was cleared to facilitate agricultural purposes, consistent with the general rural zoning.

It is recommended that the Council resolves to approve the retrospective application for the Clearing of Native Vegetation at Lot 183 (No.3091) Great Northern Highway, Bullsbrook subject to conditions

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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 has 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 require the local governments 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.

RIGHT OF REVIEW

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 owner of the subject land) may apply to the State Administrative tribunal for a review of a reviewable determination in accordance with Part 14 of the Planning and Development Act 2005.

BACKGROUND

Applicant: J I P Land Pty Ltd

Owner: J I P Land Pty Ltd (Director: John Pirone) Zoning: LPS17 - General Rural

MRS - Rural

Strategy/Policy: Nil.

Development Scheme: Local Planning Scheme No. 17 Existing Land Use: Single Dwelling

Lot Size: 415154m²

Lot Area: 41ha

Use Class: 'P'

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DETAILS OF THE PROPOSAL

The application was initially for the following works:

• Retrospective approval for the clearing of a total of 41.3 ha of native vegetation - comprising:

o 1.6 ha of remnant native vegetation (as per DER clearing permit granted 4 July 2017); and

o 39.7 ha of planted/regrowth native vegetation.

• Filling of land/earthworks

o Fill low points in the centre of the property to prevent flooding (fill up to 40cm above existing natural ground levels). This included the filling in of an existing informal drain, which is not currently protected by any easement.

o Spoon drains to be dug along the driveway to channel run-off to the drainage easements at the front of the property.

• Overwidth Driveways

o The central (east-west running) driveway through the property was proposed to be 9m wide.

The application was referred for comment to adjoining landowners and relevant state government referrals. Through the referral process it was determined the application is within the 500m buffer of the nearby Claypan Threatened Ecological Community.

Activities that are likely to impact nearby Claypan community would not be supported by the DBCA, these activities included the filling of land and alteration of the existing surface water drainage regime. The applicant was advised of these concerns and subsequently provided and amended plan which removed the filling of land component from the application. This was also to help alleviate drainage concerns raised by the landowner to the north of the subject property.

The applicant has stated that the purpose of the clearing is to allow for future cropping, running livestock and farming the land, as well as minimising fire risk.

DESCRIPTION OF SITE

The subject property is located north of the Bullsbrook town site and is bound by Great Northern Highway to the east, rural properties to the north and south and the Ellen Brook to the west.

The subject property is relatively flat, with a small gradient that falls to the south.

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PUBLIC CONSULTATION

The application was advertised to all the adjoining landowners and the relevant community interest groups for comment for a period of 14 days by way of letter. During this period the City received 2 submissions, both of which were objections to the proposed development. The following is a summary of the key concerns raised in the public submissions:

• The filling of land will negatively impede the natural flow of drainage.

• Where the fill will be sourced from and the potential environmental impacts of unclean fill.

• The precedence of clearing native vegetation without the appropriate permits, and the potential environmental impacts of such clearing.

As previously mentioned, the proponent has removed the proposed filling of land component form the application. City staffs are satisfied the concern regarding the impacts of fill has satisfactorily been addressed as a result. Furthermore, the removal of the fill component is likely to reduce the impacts of drainage on the natural flow, City staff accept that drainage can be addressed through a condition of development approval. The only concern pertains to the clearing of native vegetation. This has been addressed throughout the report.

CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

Department of Water & Environmental Regulation

The application was referred to the Department of Water and Environmental Regulation which is the responsible authority for issuing a clearing permit under the Environmental Protection Act 1986.

The Department advised the City the proponent lodged an application for the clearing of 41.3ha of native vegetation at the property on the 14 November 2016. The application area was reduced from 41.3ha to 1.6ha given a majority of the property contained planted vegetation that is not 'native vegetation' by definition under the Environmental Protection Act 1986 (EP Act) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (Clearing Regulations).

In short, a vast majority of the vegetation was exempt from requiring a clearing permit from the DWER. Only 1.6ha of native vegetation was required to have a clearing permit, because that portion of land was considered to be within an Environmentally Sensitive Area (ESA) conservation wetland. DWER determined that the vegetation to be cleared was in a degraded to completely degraded condition and the clearing is unlikely to have any significant environmental impacts.

Subsequently the department issued a permit to clear no more than 1.6ha of native vegetation on the 4 July 2017.

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Department of Biodiversity Conservation and Attractions

The DBCA objected to the activities that were likely to impact the nearby Threatened Ecological Community (within 500m) including the filling and alteration of the existing surface water drainage regime. The proponent removed the filling of land component and no longer intends to alter the natural drainage regime. City staff is satisfied the removal of these components from the application addresses the Departments concerns.

It is further noted DBCA made a submission to DWER on the clearing permit, raising concerns regarding the clearing of subject areas wetland values and impacts on the Ellen Brook. DWER considered DBCA's submission but ultimately resolved to unconditionally approve the clearing permit.

DETAILS

The subject property is zoned 'General Rural' under the City of Swans Local Planning Scheme No. 17. The objectives of the 'General Rural' Zone are to -

a) Facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;

b) Provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of the land elsewhere which is specifically zoned for such development;

c) Ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;

d) Ensure that the development and land management are sustainable with reference to the capability of land and the natural resource values.

The works will facilitate future agricultural and rural activities and is therefore considered to be consistent with the objectives.

Environmental Considerations:

The relevant environmental issues were considered by the responsible authority as part of an application to clear native vegetation under the Environmental Protection Act 1986.

The relevant authority being the Department of Water and Environmental Regulation issued unconditional approval for the clearing of native vegetation. Drainage concerns can be addressed through conditions of approval.

Amenity:

No concerns were raised about the impact on amenity as a result of the clearing of native vegetation. The subject property has maintained some vegetation onsite, and will be similar to other general rural lots in the area.

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OPTIONS AND IMPLICATIONS

Option 1: Council may resolve to retrospectively approve the Clearing of Native Vegetation at Lot 183 (No.3091) Great Northern Highway, Bullsbrook subject conditions.

Implications: The proponent will have obtained the necessary approvals for the clearing of native vegetation.

Those who submitted on the proposal may be aggrieved by the decision.

This is the recommended option.

Option 2: The City considers that refusal of the application is not a valid option due to its overall compliance with planning matters.

This is not the recommended option.

CONCLUSION

The application is for the retrospective clearing of native vegetation at Lot 183 (No.3091) Great Northern Highway, Bullsbrook.

The application initially comprised of the following aspects: the retrospective clearing of native vegetation; the filling of land; and the construction of over width driveways.

The application was advertised for public comment during which the City received two submissions on the proposal, both objections. The objections pertained to concerns regarding stormwater management and environmental degradation as a result of the filling and clearing of vegetation components.

The application was also referred to the Department of Water and Environmental Regulation (DWER) and the Department of Biodiversity, Conservation and Attractions (DBCA).

DBCA objected to the filling of land and any changes to the flow of the natural drainage of the land.

DWER advised a majority of the vegetation did not require a clearing permit as it was considered to be exempt under the Environmental Protection Act 1984 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004. The vegetation that did require a clearing permit was considered by the department as degraded. DWER issued a clearing permit for in July of 2017.

The proponent addressed the concerns raised by the public and DBCA by removing the filling of land component from the application which subsequently alleviates the environmental contamination and drainage concerns.

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The vegetation was cleared to facilitate agricultural purposes, consistent with the general rural zoning. The keeping of stock at the property is considered to be exempt from requiring planning approval.

The clearing of the native vegetation will have no detrimental impact on the amenity of the locality and the environmental concerns have been addressed by the Department of Water and Environmental Regulation. Therefore it is recommended that the application is approved.

ATTACHMENTS

Location Plan

Development Application Plans

STRATEGIC IMPLICATIONS

Nil.

STATUTORY IMPLICATIONS

Local Planning Scheme No. 17 Planning and Development Act 2005

Planning and Development (Local Planning Schemes) Regulations 2015

FINANCIAL IMPLICATIONS

Nil.

VOTING REQUIREMENTS

Simple majority

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RECOMMENDATION

That the Council resolve to:

1) Retrospectively approve the clearing of native vegetation at Lot 183 (No.3091) Great Northern Highway, Bullsbrook subject to the following conditions:

1. This approval is for the clearing of native vegetation as per the approved plan.

2. If the development causes any obstruction, alteration or interference with a natural water flow of surface water, including the rate in which the water moves, the landowner, applicant or developer must rectify the damaged caused and reinstate to the City's satisfaction.

3. No stormwater is to be channelled or discharged directly into the Ellen Brook, without proper stormwater management approved by the City.

4. Soil on the lot shall be stabilised at all times to prevent erosion and dust blowing, and appropriate measures shall be implemented by the landowner within the time and in the manner directed by the City in the event that sand or dust is blown or drifts from the lot.

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.

2) Advise the proponent of the resolution of Council.

3) Advised those whom submitted on the application the resolution of Council.

CARRIED

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Location Plan

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