The two recent State Administrative Tribunal (SAT) decisions in Bennett v Western Australian Planning Commission  WASAT 32 (Bennett) and Boynton v Western Australian Planning Commission  WASAT 60 (Boynton) have considered the application of the Bushfire State Planning Policy (SPP 3.7) to subdivision proposals. In both cases the proposed subdivision sites were located within a designated bushfire prone area, as defined in SPP3.7.
The subdivision proposals were refused by the SAT because:
- the proposed subdivisions were contrary to SPP 3.7;
- there was inadequate vehicular access serving the subdivision in the event of a bushfire; and
- a departure from SPP 3.7 would set an undesirable precedent for the subdivision of similarly constrained lots.
The objective of SPP 3.7 is to “[a]void any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.” The SAT considered both subdivision applications and found that neither met this objective.
In Bennett, the SAT’s consideration of this objective centred around the applicant’s plan for a building, which would allow occupants to shelter safely in the house, rather than leave the property, when there is a likelihood that the access route will be impacted by bushfire. The SAT held that the proposed building would not avoid any increase in the threat of bushfire to people or to ensure the preservation of life. Therefore, the applicant’s proposal was contrary to SPP3.7.
In Boynton the SAT held that the applicant’s had failed to submit the information required by SPP3.7, which would have allowed the SAT to determine what the bushfire threat was, for each lot that would be created by the subdivision. In absence of this information the bushfire threat could not be determined, and the SAT deemed it inappropriate to grant subdivision approval.
In both Bennett and Boynton the SAT assessed whether there was vehicular access to the proposed subdivision that is available and safe to use during a bushfire event.
In Bennett the SAT assessed the site access with reference to Element 3 of the Guidelines for Planning in Bushfire Prone Areas. The SAT held that there was insufficient access to the proposed subdivision during a bushfire due to:
- a constrained number of access contingencies, as the surrounding grassland would complicate fire containment and reduce the likely success of evacuation;
- the possibility of reduced visibility due to thick grassland smoke;
- the reduced likelihood of falling trees and objects, as they are set well back from the surfaced area of the road; and
- the potential for congestion on the access road as residents evacuate, fire services arrive and some residents returning to save aspects of their property.
Given these considerations, the SAT found that the Proposal did not meet Element 3 of the Guidelines and, as there were no cogent and legitimate reasons to depart from Element 3 of the Guidelines, the decision to refuse the subdivision application was affirmed.
Similarly, in Boynton the SAT was not able to find that the proposed subdivided lots had sufficient site access during a bushfire event. This was due to the lots not fronting onto a dedicated public road. Rather, the sole access to the lots would have been by a long cul-de-sac, which despite its historic use, was not considered to be a road which the Crown was required to keep open.
The SAT held that in both instances, the inconsistencies between the subdivision proposals and the requirements of SPP 3.7 and other bushfire planning documents, would result in an undesirable precedent should an approval be granted.
In view of these and other SAT decisions it is clear that there must be exceptional, cogent reasons for a planning authority to depart from the requirements of SPP3.7. This gives rise to the question: is SPP 3.7 being applied too slavishly given the established principle that policies are to be applied flexibly having regard to the merits of the particular case?
 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 .