KEY ISSUES - swan.wa.gov.au · I687188 over 43 parcels of land in Ellenbrook and thus allow the...

Ordinary Meeting of Council

05 March 2014

Page 1

3.2 PROPOSED AMENDMENT NO.107 TO LOCAL PLANNING SCHEME NO.17 -

INSERTING LAND PARCELS INTO SCHEDULE 4 SPECIAL USE ZONES FOR

THE PURPOSE OF EXTINGUISHING RESTRICTIVE COVENANTS IN

ELLENBROOK

Ward: (Ellenbrook Ward) (Statutory Planning)

Disclosure of Interest: Nil.

Authorised Officer: (Executive Manager Planning)

KEY ISSUES

Two Restrictive Covenants are registered over a number of lots within

Ellenbrook in order to concentrate retail and retail related activity within the

Ellenbrook Town Centre. These Restrictive Covenants have inadvertently

restricted the ability to vest land in the Crown for public open spaces, drainage

and other public purposes.

Schedule 4 (Conditions 5 and 6 of Special Use Zone No.4 - Ellenbrook) of Local

Planning Scheme 17 (LPS17) identifies land parcels that are no longer subject

to Restrictive Covenants I687182 and I687188.

The subject of this report is to initiate a Scheme Amendment to insert eleven

parcels of land into Conditions 5 and thirty-two parcels of land into Condition 6

so that the two Restrictive Covenants may be removed from them.

The modifications proposed will extinguish Restrictive Covenants I687182 and

I687188 over 43 parcels of land in Ellenbrook and thus allow the reserves to be

vested in the City of Swan.

It is recommended that the Council resolve to initiate proposed Amendment No.107 to

Local Planning Scheme No.17 and to advertise the Scheme Amendment for public

comment for a period of 42 days in accordance with the Town Planning Regulations

1967.

AUTHORITY/DISCRETION

Section 75 of the Planning and Development Act 2005 allows a local government

authority to amend its local planning scheme with the approval of the Minister for

Planning. Council resolution is sought for the initiation of a local planning scheme

amendment.


05 March 2014

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DETAILS OF THE PROPOSAL

To initiate an Amendment to Local Planning Scheme 17 (LPS 17) to add various land

parcels listed in the Staff Recommendation of this report into Conditions 5 and 6 of

Schedule 4 - Special Use Zones No 4 for the purpose of extinguishing Restrictive

Covenant I687182 and Restrictive Covenant I687188, thereby allowing these reserves to

be vested in the City of Swan.

BACKGROUND

In order to concentrate retail and retail related activity in the Ellenbrook Town Centre,

two Restrictive Covenants were applied to the Ellenbrook landholding in November 2003.

There are two covenants due to Ellenbrook being held in two ownerships and the general

boundaries of each Restrictive Covenant is as follows:

Restrictive Covenant I687182 was placed over land which at the time was owned

by the Housing Authority of WA, including Charlotte’s Vineyard, Coolamon Village,

Town Centre, Woodlake Village and Morgan Fields.

Restrictive Covenant I687188 was placed over land which was at the time owned

by a syndicate (85 Spring Street Properties Pty Ltd, Landrow Limited, DCA

Projects Pty Ltd and Martindale Pty Ltd), which includes Malvern Springs, District

Centre, Woburn Village, Lexia and Annie’s Landing.

These two Restrictive Covenants have inadvertently restricted the ability to vest land in

the Crown as reserves.

In order to allow their vesting, a condition was inserted into Schedule 4 - Special Use

Zones No.4 of LPS 17 identifying the reserves and formally extinguishing a Restrictive

Covenant over them in accordance with Item 11 (1) of Schedule 7 of the Planning and

Development Act 2005. Amendment No.107 proposes to identify 43 new reserves into

Local Planning Scheme No.17 so that they can be vested with the City of Swan.

OTHER RELEVANT DECISIONS OF COUNCIL

22 July 2009: Council approved a similar Scheme Amendment (No.19) to add 10 land

parcels into Schedule 4 – SUZ 4 (Condition 5) so that Restrictive Covenant I687182 is

removed from them. Amendment No.19 was subsequently approved by the Minister of

Planning and gazetted into effect on the 19th of September 2009.

9 February 2011: Council approved Scheme Amendment No.54 which introduced a

Condition 6 into Schedule 4 – SUZ 4 to extinguish a second covenant (Restrictive

Covenant I687188) from various land parcels and add land parcels to Condition 5 so that

Restrictive Covenant I687182 can be similarly removed from them. Amendment No.54

was subsequently approved by the Minister of Planning and gazetted into effect on the

5th of May 2011.


05 March 2014

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CONSULTATION

If Council resolves to initiate the proposed scheme amendment it will be referred to the

Environmental Protection Authority (EPA) for a period of 30 days as per the requirement

of the Planning and Development Act 2005.

Once the advice of the EPA has been received the City will commence public advertising

of the proposed amendment consistent with the requirements of the Town Planning

Regulations 1967.

It is understood that the affected landowner is aware of this proposal given the request

was submitted by Roberts Day on behalf of the subdivider Ellenbrook Management

Limited. Irrespective of this, landowners will have the opportunity to comment during

the formal advertising period, which will be considered by Council as part of a future

item.

DETAILS

Proposed Scheme Amendment No.107 is to include various reserves into Schedule 4 -

Special Use Zones No 4 for the purpose of extinguishing Restrictive Covenant I687182

and Restrictive Covenant I687188, and thus allow vesting of reserves in the City of

Swan. City officers consider the proposed changes to Local Planning Scheme No.17 to be

appropriate because -

the subject reserves are identified in the endorsed structure plans and WAPC

approved subdivisions as reserves for public open space, drainage and other

public purposes;

these land parcels need to be free of encumbrances before they can be vested in

the City of Swan as reserves, and

item 11(1) of Schedule 7 of the Planning and Development Act 2005 provides for

the extinguishment of a Restrictive Covenant by identifying exempted reserves in

a Local Planning Scheme. Therefore Council can consider initiating such an

Amendment.

Due to their limited ability to be used for recreation, that the irrigation lakes

abutting the Charlie Gregorini playing fields are now proposed to be reserved as a

separate parcel of land dedicated for drainage (Drainage Reserve Lot 8382)

instead of being incorporated within Recreation Reserve 5519. This is why the

existing reference to Recreation Reserve 5519 in the Scheme is proposed to be

superseded by new references as detailed in ‘1.a.’ and ‘1.c’ in the

recommendations of this report.

The location and size of these reserves are included in the attachment to this Report.


05 March 2014

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OPTIONS AND IMPLICATIONS

Option 1: Council may resolve to initiate the proposed amendment to the City of Swan

Local Planning Scheme No.17, as per the staff’s recommendation.

Implications: The City will refer the Amendment to the EPA and advertise the proposal

for a period of 42 days in accordance with the process outlined in the Town Planning

Regulations 1967. Upon the conclusion of the 42 day advertising period, Council will

consider whether to adopt the proposed amendment for final approval with or without

modification. This Council resolution will then be forwarded to the Minister for Planning

to be taken into account when considering whether to grant final approval to the

amendment with or without modification.

Option 2: Council may resolve not to initiate the proposed amendment to include various

reserves into Schedule 4 - SUZ4 (Conditions 5 and 6) for the purpose of extinguishing

Restrictive Covenant I687182 and Restrictive Covenant I687188.

Implications: The City will notify the applicant of Council’s resolution not to initiate the

proposed amendment to the Local Planning Scheme and result in the POS reserves not

being vested in the City of Swan. The applicant does not have an appeal right to the

State Administrative Tribunal (SAT).

CONCLUSION

To enable the extinguishing of Restrictive Covenant I687182 and I687188 over parcels

identified as reserves within approved structure plans and subdivisions, an amendment

is required to the Local Planning Scheme to include these land parcels in Schedule 4 –

Special Use Zones 4 to allow for these reserves to be vested. It is recommended that

Council initiate Amendment No.107 to the LPS17 for these reasons.

ATTACHMENTS

Locality Plans of new reserves to be inserted into Schedule 4 – Special Use Zones No.4

STRATEGIC IMPLICATIONS

The proposed extinguishment of Restrictive Covenant I687182 and I687188 over the

subject lots is keeping with the endorsed structure plans by enabling land shown as

public open spaces and other public purpose reserves to be vested in the City of Swan.

STATUTORY IMPLICATIONS

Town Planning Regulations 1967

Local Planning Scheme No.17


05 March 2014

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FINANCIAL IMPLICATIONS

Nil

VOTING REQUIREMENTS

Simple majority

RECOMMENDATION

That the Council resolve to:

1) Initiate Proposed Amendment No.107 to the City of Swan Local Planning Scheme

No.17 by:

a. Inserting the following land parcels into Schedule 4 – Special Use Zones No.4

Ellenbrook Estate Condition 5 for the purpose of extinguishing restrictive

covenant, Document Number I687182:

“Location Lot Description Area

Town Centre Road Reserve Lot 3005 251m2




Town Centre Recreation Reserve Lot 5519 3.4851ha

Town Centre Recreation Reserve Lot 6232 1977m2

Town Centre Drain Reserve Lot 6318 2516m2

Town Centre Drain Reserve Lot 8382 1.5618ha

Town Centre Recreation Reserve Lot 8801 9077m2

Town Centre Parking Lot 9147 813m2

Coolamon

Village

Recreation Reserve Lot 9226 1.0791ha”


05 March 2014

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b. Inserting the following land parcels into Schedule 4 – Special Use Zones No.4

Ellenbrook Estate Condition 6 for the purpose of extinguishing restrictive

covenant, Document Number 1687188:

Location Lot Description Area

Malvern

Springs

POS Lot 7206 592m2

Malvern

Springs

POS Lot 7205 1171m2

Malvern

Springs

Recreation Reserve Lot 7880 6492m2

Malvern

Springs

Recreation Reserve Lot 8164 8.8863ha

Malvern

Springs


Malvern

Springs


Malvern

Springs

Drain Reserve Lot 8333 1078m2

Malvern

Springs


Lexia Recreation Reserve Lot 8599 3467m2

Lexia Recreation Reserve Lot 8257 947m2

Lexia Recreation/ Drain Reserve Lot 8262 9239m2

Charlottes

Vineyard

Drain Reserve Lot 5911 2.8669ha

District

Centre

PAW Lot 8412 300m2

District

Centre


District

Centre

PAW Lot 8486 299m2


05 March 2014

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District

Centre

PAW Lot 8395 300m2

District

Centre

PAW Lot 8441 257m2

District

Centre


District

Centre


Annie’s

Landing


Annie’s

Landing


Annie’s

Landing


Annie’s

Landing

PAW Lot 9136 401m2

Annie’s

Landing

PAW Lot 8982 299m2

Annie’s

Landing

PAW Lot 8923 300m2

Annie’s

Landing


Annie’s

Landing


Annie’s

Landing


Annie’s

Landing


Annie’s

Landing


Annie’s

Landing


Annie’s

Landing

Recreation Reserve Lot 9461 3334m2”


05 March 2014

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c. Remove the following land parcels from Schedule 4 – Special Use Zones 4

Condition 5:

“Location Lot Description Area

Town Centre Recreation Reserve 5519 5.1485ha”

2) Refer the proposed Scheme Amendment to the Environmental Protection Authority

(EPA) for advice in accordance with the provisions of the Planning & Development

Act 2005.

3) Following receipt of advice from the EPA, advertise the proposed Scheme

Amendment No.107 for public comment for a period of forty-two (42) days in

accordance with the Town Planning Regulations 1967.

CARRIED


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