Tonight: Canning becomes legally precarious?

CanningAccountability image Pouring over book for use in questioning if Canning acquitted investigation reccs

Update: the Council waved through, without any discussion, the motion to adopt the Canning City Centre Activity Centre Plan and authorised the commencement of projects a year before the WA Planning Commission is expected to do same. Presumably the Council thinks its going boldly in to the future and “just getting it done”, but I doubt any of them could answer Qs about the City plan in any depth.

Has Canning’s still largely inexperienced Council reached the point where it shouldn’t agree to approve plans put in train while the City was, essentially, under staff control, no matter what the reasoning (staff have been hired, developers interested, budget contingent, Perth will be 3.5 million by…), because to do so this quickly could potentially put the Council and ratepayers at risk of serious repercussions?

That point may have arrived, tonight at the Ordinary Council Meeting.  The City wants the Council to take responsibility for allowing development of the Canning City Centre to begin immediately, a year before the WA Planning Commission (WAPC) agrees to it.

At bottom: what should the Council do to protect itself and ratepayers’ funds?

The staff doesn’t have the power to “provide for the coordination of the future subdivision and development”, in the absence of WAPC approval, so it wants that responsibility to be assumed by the Council instead.

Here’s how they are seeking to enable this – by asking Council to approve a little plan within the big plan.  It goes like this:

  • staff say it may take 12mths for WAPC to approve the Canning City Centre Activity Centre Plan (CCC ACP).
  • in the meantime we have what we’re told is an “inferior” Local Planning Policy (SRS-237)
  • so why don’t we get council to revoke that apparent crumb-bum policy and endorse the draft (modified) Canning City Centre Activity Centre Plan (the one the WAPC will take 12mths to approve as an Activity Centre Plan) as a Local Planning Policy instead?
  • that way the executives can go out and [make deals with developers, subdivide, put out expensive contracts presumably], all while we are waiting for permission to do that from the higher authority.

I’m not sure how the City can revoke a local planning policy which is within a town planning scheme, which is itself under review by the WAPC, and then in turn try and create another subordinate plan to use within a scheme that is yet to be reviewed and renewed, however, from tonight, the Council will have to take full and final responsibility for anything that may go belly up, should they agree to this.

There are no comprehensive minutes of what the councillors were told in their “strategic briefings” as relates to the Canning City Centre plans, as the executive then and now (new CEO Kyron is no different) chose not to uphold the fullness of the recommendations from the $1.6m final Inquiry in to Canning and the public are now kept out of those strategic briefings, which are little different to the original forums the public could attend under the former council….it’s just now the staff call briefings in advance, whereas before the Council called them when they wanted more info, and now apparently everything said in those strategic briefings is too sensitive to be heard by the public.

We are also refused access to attendance records as to which of our councillors is actually attending these strategic briefings, such as those relating to tonight’s motion, and if they are doing so at the same time as other councillors so as to hear all the Q&As at the same time.

We will never know what has been said to our Council, from presentations to Qs and Answers, or if they were assured there would be “no probs” getting the WAPC to approve the City Plan in full.

What I did manage to find, however, is this from the City’s own lawyers:

Where the Commission refuses to approve or unacceptably modifies a structure plan presented by a landowner, a right of review to the State Administrative Tribunal will exist. However, no review rights will exist for local governments who prepare a structure plan which is then refused or unacceptably modified by the Commission
http://www.mcleods.com.au/news/planning-law-updates/draft-planning-and-development-local-planning-schemes-regulations-model

The structure plan is part of the City of Canning’s TPS 40 – currently also under review by the WAPC.  Note: TPS 40 is the town planning scheme that covers the whole of the City of Canning.

Recently, when the contentious Property Council report on councils planning effectiveness came out and Canning didn’t score very well, a spokesperson for the City rushed out the following:

Scorecard reports such as this do little to advance intelligent discussion about planning and urban development in Western Australia…. [the report was based on 2014/15 financial year and in the time since then city had become a top performer]”
“City rated as underperforming in strategies”, Canning Times, 13 Sept 2016

OK, we can only do so much in a blog post, so work with me here, readers, as I run what’s going on here past the IQ bar!

If, as staff say, WAPC approval will only take 12mths, what’s the rush to get around approval another way?
There isn’t one.  Waiting 12mths will not make much difference in the scheme of things – no pun intended.  The City has already arranged approval for quite a few big developments, without an overarching City Plan in place.

What Qs has [Council asked] that take on extra significance now?
Mayor Paul Ng, back in June, asked the following Q:

Q: The Mayor queried whether the vision identified in the Structure Plan will be realised over the next ten years.
A: It was noted that whilst there is significant and ongoing interest to develop within the Cannington City Centre, which will be guided by the Structure Plan over the coming years, the commitment to improve the public realm via such projects as the Cecil Avenue Main Street upgrade will provide a significant boost in achieving the vision and creating a true City Centre.

Not much of an answer at all!

Were there a lot of objections or concerns that arose during the consultation period?
Yes.  What is troubling is the City hasn’t really responded to what significant stakeholders and govt depts. had to say, NOR has it undergone further consultation.  Overall the modifications seem minor and lightweight and don’t really address govt dept concerns.  It seems all the work that needs to be done, in order for WAPC to make final approval, hasn’t been, such as traffic impact assessments.  Hard to believe the WAPC wouldn’t uphold more concerns than seems the City’s intention.

For example, Perth Airport states

“does not support further intensification of residential development in CCC, will continue to be affected by aircraft noise… new runway will not assist in alleviating aircraft noise in this area… lots of people already complaining”

[Copy of submissions HERE – easy to follow, but difficult to comprehend why the City seems to feel it is above the specialist fields and therefore concerns expressed or qualifiers made by state govt depts.]

It was only two years ago Director of then City Futures, Mike Mouritz, was flogging the apartments expected to be built in Canning’s CBD as great for FIFOs.  All the double-glazing, wall and ceiling insulation won’t keep out all aircraft noise and falls down when one opens a window – and flights are only going to increase in numbers.

I can’t help but think these apartments will be swamped by investors, rather than owner/occupiers, and rented out to people who will not engage much in their community, alternatively, that all of this isn’t ultimately going to end up as student accommodation provision for Curtin University.

Cr Patrick Hall has also highlighted that sound-proofing these buildings will add to the cost of construction and therefore notions of affordability.

Is there a legal opinion offered as to what happens if the administration makes deals with developers/contractors, or subdivides, etc in advance of WAPC, which may not approve of the current City Plan?
No.

What does the Motion to Council go in to?
It’s not a deep document.  Tick boxes, paper trails mostly. And don’t be blown away by “Clause [this and that]”!  The City plan is off to WAPC because it has to go within a certain time after consultation – its just unfortunate, I’m finding, that the administration really doesn’t like going back out to consultation once submissions come in from original review period….

What does the Motion put emphasis on, apart from “can we go ahead and develop before the higher authority has agreed to it?”
Assessing bushfire risk for the City Centre (deemed low).  Oddly, it doesn’t go in to the bushlands that are in the Riverside precinct plans (commercial and residential).  I would have thought this far more challenging to work around, as its my understanding that bush can’t be cleared, ie protected or overseen by the Swan River Authority.  A few years ago a fire did jump from one side of the river to the other and buildings came under threat.

Could something else be at play here, ie, why the rush?
Possibly.  Canning has only just been allowed a Council back.  In 12mths it is possible we may vote out 5 of the 10 councillors, and even lose a 6th in Jesse Jacobs, if he succeeds in taking Bill Johnston’s seat of Cannington. Who knows if new councillors will agree to go along with the City plans?  BTW, there has been a call to disallow councillors to vote on significant development plans for some portion of the year leading up to a local govt election.

Do you think the Council will agree to go along with the full motion tonight?
Yes.  It seems legally precarious when it isn’t necessary, however.  The Council does have a responsibility to ratepayers to ensure the best use of their money, and as I understand it the City’s insurers have continually refused to refund the $1.6m Inquiry cost, and I have always wondered if it was because, in part, the Inquiry was forced to be delayed for three months because of poor staff responsiveness to subpoenas from the Inquiry staff (the Panel of Inquiry in to the City of Canning was vested with the powers of a royal commission and expected a very high level of compliance).  Are we in a good space here, legally-speaking, as the administration seeks to move ahead on development in the Canning City Centre before WAPC approval? Have we done our homework?

What could Council do to protect ratepayers’ monies and ensure only development consistent with what the WAPC will eventually authorise occurs?

(1) Agree to the adoption of the Canning City Centre Activity Centre Plan “in principle” only, contingent on approval from WAPC.

(2) Not agree to revoke LPP SRS 237 now, so that the Activity Centre Plan, then immediately instituted as the Local Planning Policy, is just carried on with anyway – without the WAPC’s approval of its big sister version.

(3) If all else fails, shouldn’t the Legal considerations listed on this motion to Council include advice as to what happens if the administration proceeds acting as if the WAPC has or will pass the new City Plan, only to find something doesn’t pass approval and the City could be sued?

Are conflicts of interest at play here? 
It’s hard to see they aren’t, from a mere mortal’s point of view.  The City’s new Business Advisory Group has given the project the thumbs up, but then a lot of the folks on it represent entities that have a direct interest in the CCC ACP!

Anything else of note?
Lot of emphasis, one way or another, on activation of Cecil Ave, ie widening, range of public transport options, pedestrian paths (cycling?), alfresco dining, street furniture, landscaping, etc), but I can’t help thinking that essentially we may be looking at another Freo café strip, where coffee lovers choke to death on car and diesel bus fumes, etc.  The siting of the short-lived, very expensive “Spice Road Pop Up”, ie, one vision of the future of activating Cecil Ave (a City initiative), opposite Carousel, along Cecil Ave, was not that good a predictor of the effect of cars, etc as it seemed to be open largely in the evenings, and on weekends.

The Canning City Centre may be deemed a Strategic Activity Centre under the Barnett Govt’s city planning, but development of the City Centre is not a high priority to anyone it seems except us.  The Cannington train station is already well patronised, the area flooded with activity largely relating to Carousel and Cecil Ave is still an activated area otherwise.

Herewith are the recommendations to Council, asking them to move ahead on development immediately with an enablement mechanism (part 2a and b), in advance of the WAPC signing off on the Canning City Centre as a whole.  Hopefully nothing goes wrong!

That Council:

1. Pursuant to Clause 5 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions), endorses the recommendations contained within the attached Schedule of Submissions.

2. Pursuant to Clause 6 and Clause 4 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions):

a) revokes Local Planning Policy SRS 237.

b) endorses the Canning City Centre Activity Centre Plan, with modifications, as detailed in Attachments 2 and 3, as a Local Planning Policy (LP.08).

3. Pursuant to Clause 36 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions) resolves to adopt the Canning City Centre Activity Centre Plan, with modifications, as detailed in Attachments 2 and 3.

4. Authorises the Chief Executive Officer to forward the documentation to the Western Australian Planning Commission for its consideration in accordance with Clause 36 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions).

5. Authorises the Mayor and Chief Executive Officer to sign and apply the common seal to the documentation.

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