Text may be used as quotes attributed to Mr Jeremy Dawkins, Chairman WAPC

The WAPC has recently been concerned that the development of canals at Port Geographe may not meet conditions intended to maintain safe boating and navigation standards, and good water quality requirements. Subdivision assessment and compliance action by the WAPC and a subdivision clearance request by the developer with a formal lodgement of an application for review with SAT, led to legal actions and negotiations between the developer, the WAPC and state agencies.

Port Geographe is a two-phase canal and marina estate, which has been subdivided on a staged basis since the 1990s. The developer is responsible for the construction and management of the canals until two years after the title for the last lot of the whole estate is created. Thereafter management responsibilities are handed over to the Shire of Busselton.

Phase 1, comprising the area north of Old Layman Road, is essentially complete.  The area south of the Old Layman Road reserve, which is also known as phase 2, was granted subdivision approval by the WAPC in December 2005. The subdivision approval to create 599 lots in a further 16 stages is subject to 51 conditions.

The WAPC did not endorse the deposited plan for stages 1 and 2 as relevant state and local government agencies were not satisfied that all of the conditions had been fully satisfied for the purposes of stages 1 and 2.  In early May the developer applied to the State Administrative Tribunal (SAT) for a review of the WAPC’s refusal to clear these conditions

The SAT proceedings comprised an extensive mediation process, involving the WAPC, numerous state government agencies and the Shire of Busselton in detailed consultation and negotiation, over a period of two months. During that process, concerns about most of the outstanding conditions were resolved.

Two pivotal conditions remained in dispute toward the end of the SAT mediation process.

  • Condition 22 required the developer to prepare and implement an artificial waterways management plan for the design, construction and management of the canals for boating and water quality protection purposes.
  • Condition 39 required the developer to prepare and implement a mosquito management plan to prevent mosquitoes from becoming a health problem at Port Geographe.

On 29 July 2008 the SAT proceedings concluded with consent orders which have the following effect.

  • Conditions relating to stages 1 and 2 are cleared for subdivision.
  • Condition 22 is deleted and substituted with new conditions 22 and 22A to 22E.
  • New conditions 22 and 22A to 22E are intended to clarify and detail the requirements of the artificial waterways management plan. The conditions also expressly require the developer to undertake an overall baseline flushing model of the canals constructed and proposed for all stages, prior to the approval of new titles for stages 3 and 4 (to ensure adequate flushing of the canal waters). The substitute conditions also detail survey requirements for all canals to confirm that they are suitable for safe navigation purposes and call for the artificial waterways management plan to be revised as required (for instance, to accommodate the installation of mechanical flushing systems, if necessary).
  • Condition 39 is deleted and substituted with new conditions 39 and 39A.
  • New conditions 39 and 39A require the completion of an adequate mosquito management plan by 31 October 2008 or prior to the approval of new titles for stage 3, whichever is sooner.  The mosquito management plan must now be revised from time to time as required.
  • In the event of dispute as to the need and/or extent of revision of the artificial waterways management plan, the developer may seek SAT intervention.

The WAPC supports substituted conditions 22 and 22A to 22E for a number of reasons.

  • Construction approvals by the Shire of Busselton, which the WAPC considered had no regard for due process, are taken into account.
  • An interim artificial waterways management plan for stages 1 and 2 is adopted.
  • The developer’s agreement to undertake a flushing study for the canals in all stages has been formalised.
  • Any necessary revisions of the artificial waterways management plan – before clearances to stages 3 and 4 and any further construction – is accommodated.
  • Processes for securing the design and maintenance requirements for safe boating and navigation purposes, and for settling the requirements for adequate water quality and flushing rates, are provided for.

The substituted conditions 39 and 39A retain the primary objective of preventing the canals and other artificial water features from becoming a breeding ground for mosquitoes and creating a public health risk for the locality.

The new conditions are a significant improvement on the wording of the previous conditions and provide greater clarity as to what is required to satisfy the conditions on a staged basis. 

The current subdivision application is valid until 29 December 2009.  A new subdivision application has been lodged for stages 3 to 15 to provide continuity and surety after the expiry of the current subdivision approval.  This application has yet to be determined by the WAPC and has been referred to the Environmental Protection Authority and relevant referral agencies for assessment.

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Media contact: Natasha Farrell (08) 9264 7518/0408 955 604