Smiths Beach Development

The Plan:

Planning is underway for a hotel/residential development at the end of Smiths Beach. The developers call it a “coastal village” and the concept is here. A community group, addressing the development, Smiths Beach Action Group has its own website here.

A formal application is expected in the last quarter of 2021 which will be handled by the State Development Assessment Unit, a state government body set up during COVID to fast-track development applications. Adrian Fini, the spokesman for the developer, Smith 2014 Pty Ltd has said it will also be assessed by the Environmental Protection Auhority. (EPA) The plan replaces a 2011 approved development guide plan/subdivision. This plan was predicated on a 2010 EPA approval that expired in 2010.

The Details:

The new plan will include a 65-room hotel, 61 residences that under the city’s planning sheme can berented out as holiday homes. 36 campsites, a Community hub (including new Surf Life Saving Club and general store, café , bakery, and reception h all and a Cape to Cape trail welcome centre). The new plan has an 18 hectare development footprint. This compares with the approved plan of 12.8 hectares. Forty two percent (16.8 ha) of the site will be transferred by the owners to form part of the Leeuwin Naturaliste National Park. This compares to 21 ha (52.5%) in the previously approved plan. Although the developers say a further 1.52ha of “excellent classified vegetation” is being retained and 10% (4.2 ha) of the site will be set aside as revegetated and rehabilitated open space to form part of the flora, fauna and pedestrian network.

The approved Structure Plan (previously called the Design Guide Plan) gives 20 hectares to the national park and has 9ha for tourist and 3.8ha for residential development (meeting the 70-30% state and local government requirements.)

Approved and current Structure Plan

The new plan will use a different methodology, departing from using land area to define the tourism and residential offering . The new figures have not been provided. Below is the new plan superimposed on the old for comparison.

In 2013 a subdivison plan (below) was approved based on the Structure Plan. This had a shelf life of 4 years. As no action was taken on it, it is no longer valid.

Previously approved subdivision plan

As can be seen, the new development has a larger footprint and moves further west than the previous approved plan. This is a similar footprint to an earlier plan that was rejected by the EPA due to concerns over visibility and vegetation de struction (details below) however this previous plan proposed a much higher density of development than the new plan. A comparison of the vegetation since the earlier rejection is found here. The increased development footprint, which according to the developers of the proposed plan has been shaped to retain the ‘excellent’ vegetation is justified by Fini to allow for higher quality vegetation being protected on the eastern side. The larger building lots will also allow increased vegetation throughout the development, with eight metres of vegetation between houses, he said. To Fini, the old plan looks like a northern Perth suburb. Critics say the residential properties further west along the point will increase visibility to an unacceptable level and the required clearing for bushfire protection will mean the loss of signficant native vegetation

The following topographical map shows the elevation levels ranging from five metres along the front edge along the road to 60m at the top along the existing fire break.

The following image superimposes the plan on the topographical map. The new proposed development on the west side reaches up to the 40m mark and the houses along the firebreak on the east reach the 45m line.

If approved, construction would start in 2022 or as soon as approvals are received, Fini said.

The Process:

The developer, Smiths 2014 Pty Ltd, has decided to apply for development approval through the State Development Assessment Unit. This is a temporary arrangement that grants the Western Australian Planning Commission (WAPC) decision-making powers to determine proposals over $5 million in regional areas. Introduced last year to “fast track” “shovel ready” developments, it was a reaction to the threatened economic slowdown due to COVID. More information is available here. This process is scheduled to end January 7, 2022, although there is some thought the system will be replaced by the proposed Special Matters Development Assessment Panel. Under the temporary legislation the WAPC makes the decision based on recommendations formulated by the State Development Assessment Unit with advice from the Local and State Government referral agencies. They get 42 days to provide input. The public is given 28 days to comment although this could be extended.

Normally a decision on a project like this would go to a Joint Developoment Accessement Panel (JDAP) which consists of a five member panel including two local councillors as it meets the $10m mandatory assessment threshold for regional project . Under the City’s local planning scheme the public would get 60 days to comment on a develooment in this location.

In making its decision the WAPC is not bound by the requirements of any legal instruments (except the Environmental Protection Act) such as local planning laws. But “In considering and determining the development application, the
Commission must have due regard to:
• the purpose and intent of the local planning scheme and local planning policies;
• the need to ensure orderly and proper planning, and the preservation of the amenity of a locality;
• the need to facilitate development in response to the economic effects of COVID-19; and
• any relevant Region Planning Schemes, State planning policies, and any other relevant WAPC policies.”

WAPC can waive requirements for a local structure plan. The amendment setting up the SDAU also amended the Enviromental Protection Act, giving the government the ability to recommend classes of relevant schemes that are not required to be assessed under that act.

Both the local MP, Libby Mettam and the Busselton mayor and council have urged the Planning Minister to not go down the SDAU route but to follow normal procedure. See the mayor’s letter here. In a response to one letter a spokesman for the minister said the SDAU process “is not intended to subvert orderly and proper planning and is not a ‘fast track’ process. Nor does it mean that proposals will not be subject to Section 5 of the Environmental Protection Act 1986.”

the As of mid-August 2021, twelve developments have gone before the SDAU and twelve have been approved.

The development will be under a new-to-WA title, a Community Title (CT). The legislation was introduced in 2018. CTs give the land owner more ongoing control over the finished development than under a strata title. It also allows further subdivisions or tiers. It will be up to the WAPC to agree that a CT title is appropriate. This will be based on the developer’s community development statement (CDS). However the WA Planning Commission states: “the WAPC cannot approve a community development statement if it conflicts with a State planning policy, a local planning scheme or interim development order that has effect in the locality in which the land is situated. “(section 24 of the CT Act, their emphasis) Given the planned development is not in line with the local planning scheme or the State Planning Policy 6.1 Leeuwin-Naturaliste Ridge. (see below), this could make it difficult to get approval. However if the development has WAPC approval, it “would be considered to be consistent with the local planning framework. This is because a valid development approval exists for the subject land, for which due regard would have been given to the planning framework during the assessment of the application.” (WAPC Guidelines)

The CDS application is planned to follow the approval of the development application. It will be sent to the City for comment and will be put out for public comment for probably at least 21 days if it was seen it would “amend or further define the existing planning framework”. Once the CDS is approved, local government and other decision makers are required to approve all applications that are consistent with the CDS.This is unlike a normal strata title.

Background:

The site:

Lot 4131 (formerly 413) Smiths Beach consists of 40.5 hectares (in blue boundary on map )stretching from Smiths Beach Road, behind the existing holiday homes towards the point. It is bounded by the national park. It is zoned Tourism (orange on map) with part additionally zoned Residential to R25 density (red broken line). It was purchased in 2014 for a reported $10m after the previous owner went into receivership. At one stage the property was owned by Lord Robert McAlpine.

The property (blue line) under town planning scheme

History:

In the late 1990’s the state was establishing a planning policy for the Capes region. A study recommended 42 low density residential units for the site. In 1998 the State’s Leeuwin Naturaliste Ridge Statement of Planning Policy (LNRSPP) supported a tourist development on the site, allowing up to 500 permanent residents (aprox 230 dwellings) with up to one third of the accomodation being permanent. In 2000 David McKenzie’s Canal Rocks Pty Ltd submitted plans for a tourist/residential development for 460 holiday units, and 230 residential lots along with an outdoor festival area, village and community centre. Eight hectares would be dedicated to the national park. There were over 2,500 submissions to council against the development with roughly 1,000 from locals. During the state election the Labor party said it would block the development if elected. In response to negative community opinion the plan was withdrawn in 2001 before it went to council for a vote.

Later that year LNRSPP was amended by the new Labor government to the following, which remains the policy:

The Tourist Node of Smiths Beach, defined as being land west of Smiths Beach Road, has potential for tourist development, including short-stay accommodation.
Residential development will be permitted on Sussex Location 413 but will be secondary to the predominant tourist function.

Subdivision and development of the identified developable area(s) of Sussex Location 413 will have a ratio of not less than seventy percent (70%) tourist development and not more than thirty percent (30%) residential development calculated from the developable land area. Mixed residential densities of up to a maximum R Coding of R25 under Statement of Planning Policy No 3.1(Residential Design Codes) for residential development will be considered. Identifiable developable land will exclude areas to be set aside for Principal Ridge Protection, national park, public open space, or similar purposes as designated on an approved Development Guide Plan. (Note: R25 means average site area of 350m2 per dwelling and minimum of 300m2 with up to two storeys or normally 10.5m maximum height.)

In April 2005 Busselton council votes to amend its planning scheme, making it consistent with the LNRSPP amendment. That is now schedule 8 of the city’s planning scheme LP21 as further amended. Along with reinforcing the requirement to meet the LNRSPP policy it states:

  1. In relation to Sussex Location 413 Smiths Beach Road, Yallingup the Identified Developable Land Area(s) shown on a Structure Plan will identify where development may be undertaken on the land and must be determined having regard to the—
    1. (a)  overriding need to protect the visual amenity, natural landscape and environmental values of the area

The amendment requires a Structure Plan that would go out for public comment for 60 days.

In August 2005 Canal Rocks Pty Ltd submitted a $330mln plan to build 114 permanent homes, 272 holiday units, a 100‐bed and 40‐tent resort and a 72‐bed backpackers lodge along with a conference centre, 2000sqm of shops, cafes and bars and 200sqm of community facilities. Within 15 years the site would accommodate 1,500 people. It was to be called Smiths Point. The first proposal four years earlier was for a combined total of 690 residential lots, tourist units and hotel rooms plus 1000sq m of retail space. The newer plan was for 606 homes and tourist units and hotel rooms with 2000sq m of retail space.

Original Plan

The West Australian revealed in December 2005 the CCC was investigating into $15,000 in payments that four Busselton Shire Council candidates declared they received from retail lobby group the Independent Action Group in 2005 and any undeclared links IAG had to the proposed development.

In March 2006 the EPA produced an Environmental Scoping Document, the first step towards a Strategic Environmental Assessment. It is available here. The issues raised included sustainability, flora and fauna, conservation areas, landscape and landforms, karst, surface water and groundwater quality, air quality (dust, greenhouse), noise, Aboriginal heritage and visual amenity.

In August 2007 the latest plan was released building on 21 ha with 104 permanent homes; two 50‐bed hotels; a 60‐bed backpacker lodge; about 50 camping sites (272 tourist units); and 1700sqm of commercial floor space. Another 19ha was set aside for public space and reserves including “a 9ha Community Endowment Reserve (Principal Ridge Protection Area) and adjacent 6ha conservation area protecting the western headland permanently, as well as an expanded foreshore reserve“.

Revised Plan

Also in August the developer say they had lost confidence in the Busselton Shireʹs ability to assess its application and referred the matter to the State Administrative Tribunal (SAT).

In August 2008 Canal Rocks Pty Ltd referred the application to the (SAT) after a statutory time limit to assess the development expired more than a fortnight earlier. This move effectively bypassed the council decision making process. The shire had received over 8,000 submissions to the latest plan for the development and had agreed to an independent audit of the submissions.

In December 2008 the council voted down the latest plan, knowing there would be a SAT hearing in February.

The EPA in April 2009 rejected the development saying it would have an unacceptable visual impact on the environment but recommends a smaller footprint, exluding “development out onto the headland and the slopes of the ridge outlining the headland, and would also exclude development on the higher portions of the site towards Canal Rocks Road.” It sets out a “SEA Developable Area that shifts development just east of an existing cleared track and restricts it to below the 35 metre height contour.”

In June 2009 the Busselton council approved unanimously a revised plan reached through mediation between the developer and the SAT. It reduces the area to be developed from 21ha to 13ha and replaces the two hotels with one bigger resort site, which would be restricted to a 7.5m height limit. It still includes a backpackersʹ lodge, camping sites, 8 tourist lots and 88 residential units. Twenty one hectares would go to an extension of Leeuwin‐Naturaliste National Park. The modified plan allows for 9ha tourist and 3.8ha residential development (meeting the 70-30% requirement). With the approval, the developer dropped the SAT appeal.The approved plan was never put out for public comment.

Approved Subivision

The Environment Minister in June 2010 approved the development based on the mediated plan and in January 2011 the WA Planning Commission approves the development. In 2012 negotiations between the developer and sewage and water providers delayed subdivision approval. In April 2013 Canal Rocks Pty Ltd went into liquidation. Later in the year receivers KordaMentha negotiated the final subdivision terms at a SAT mediation. That is available here. According to press reports at the time documents lodged by Canal Rocks directors with the Australian Securities and Investments Commission, showed it owed $20 million to NAB and the land was valued at $25 million. Later that year the property was put on the market. Press reports at the time said the approved plan includes up to 61 residential lots, seven separate tourism lots of up to 40 units each, and a 3.3‐hectare resort site with about 250 units. The net development area is 19.11 hectares, with the rest of the land reserved for recreation. The formal asking price was said to be $26.5mln.

It was reported in 2014 that Eagle Bay’s Michael Oosterhof’s company Smiths 2014 Pty Ltd purchased the land for $10mln. Later that year Adrian Fini, owner of development company Hesperia was listed as the sole director of the company. Fini has recently confirmed that Oosterhof and two other investors are partners in the development with Hesperia taking the lead. The other two investors are thought to be Nigel Satterley and Willy Packer, a Perth investment banker.  Fini has a long history of development in WA, including Bunkers Bay and the Treasury Building in Perth.