Paul Murray: EPA’s bizarre backflips must face scrutiny as contentious Smith’s beach development approved

It would be a considerable understatement to say that the Environmental Protection Authority struggled to approve the highly contentious Smiths Beach land development proposal which sprawls across a spectacular and ecologically sensitive coastal headland near Yallingup. Four members of the nine-person board — including the chair — were unable to vote this month because of declared conflicts of interest over the $280 million Adrian Fini-led project. Chairman Darren Walsh was ruled out because, as Fini’s former environmental consultant, he prepared and submitted the Smiths Beach consortium’s plans to the EPA in 2022, as first exposed in this column early last year. Labor expanded the EPA board from five to nine in October, 2024, notably at the same time as Walsh was appointed chairman, having been a member since November, 2023. “This enabled a quorum of three to be reached far more easily,” the EPA said this week. Which seems a very low number of decision-makers from a board of nine on such important matters. “EPA members Darren Walsh, Jane Bennett, David Caddy and Hamish Beck all declared conflicts of interest in the Smiths Beach assessment,” the authority confirmed. “These declarations related to matters which could be perceived by a reasonable person to conflict with the member’s ability to perform his or her official duties in an independent and impartial manner.” The EPA disclosed there had been two occasions since Walsh became chair that four or more board members declared conflicts of interest, the other being the rezoning of some rural land in Wattle Grove. Walsh declared eight conflicts of interest when appointed chair and hadn’t added any since. “A declared conflict means members abstain from all discussion, consideration, and voting on the matters,” the authority said. After Walsh’s appointment, Greens leader Brad Pettitt revealed that his consultancy made $30,000 in donations to Labor from 2021-23 while he was running the business. Fini is also a Labor donor through land developer, Hesperia. Developer donations are outlawed in most Australian States and the ACT. But not here. Walsh’s conflict is obvious. On request, the EPA confirmed the other three members all had “business relationships” with the Fini group. However, the EPA said another member, Anthony Sutton, who also had dealings about Smiths Beach with Walsh’s consultancy in 2020 as an employee of the Department of Water and Environmental Regulation was not seen to have a conflict. “Mr Sutton left DWER more than six months before the EPA decided to assess the proposal in May 2022,” the EPA said. It engaged an independent probity advisor to tick that box. Getting a quorum to make the decision on Smiths Beach was just one of the hurdles the EPA had to jump. Looming large was any precedent set by the authority’s rejection of a much smaller proposal on the 42ha site from a different proponent in 2009, thrown out on the basis “that development on the headland area was not environmentally acceptable.” But now it is. Who waved the magic wand? This is how the current EPA vaulted that concern about its former decision: “The EPA considers that this assessment formed a view at a point in time; the EPA is not constrained by the outcomes of the former assessment and has considered the current proposal on its own merits against the contemporary legislative and policy settings.” That is deeply unsettling. In terms of the in-vogue arguments put forward daily by the Cook Government in other scenarios, “the science” surely can’t have changed dramatically in 17 years. The EPA was also faced with reconciling a damning report from well-credentialled consultants GHD, employed by it to do an independent peer review of the visual and landscape assessment prepared for the proponents. The report would likely have sunk any other project. In response to the proponents’ Visual and Landscape Assessment (VLA), the consultants found “the current design does not demonstrate consistency with SPP 6.1’s overriding need to protect visual amenity and environmental values.” SPP 6.1 is the government’s State planning policy for the Leeuwin-Naturaliste Ridge. However, nothing was changed to make the project comply with it. This GHD report was dismissed in the EPA decision as the consultants finding “some technical matters arising from the VLA methodology.” That’s demeaning. “The proponent subsequently responded in detail to each of the matters raised in the peer review and in conclusion stated that it adopted a landscape-led approach that keeps development low in scale, visually recessive and integrated with landform and vegetation,” the EPA decision said. So nothing to see here, apparently. Apart from inconsistency with a major State planning policy. The proponent responded in writing, but went ahead with the same plan. There is a long list of matters raised by GHD which the EPA casually waved away on the basis of those hollow blandishments. GHD said a report done for the proponent “does not clearly define or justify the key visual amenity values that underpin the site’s significance.” This is a very significant failing in the detail provided to the EPA, given the importance of the spectacular landscape to the area’ tourism values. Not that everything should be about tourism anyway. “Key view corridors and experiential sightlines from prominent public locations such as Smiths Beach, Torpedo Rocks, and the Cape to Cape Track are not explicitly mapped or analysed in terms of their contribution to visual amenity,” GHD said. But GHD’s advice on how the proposal will affect the public’s “visual amenity of the area” was far worse. “In my opinion, the proposal will result in a noticeable change to the visual experience of the area, particularly from publicly accessible locations,” the consultant wrote. “Areas to the east of the development site already contain existing development and, in my opinion, appear to have a higher capacity to absorb the type of change proposed. The proposed built form in these areas is generally viewed in the context of existing buildings, and while change will be visible, it may be perceived as an extension of the current settlement pattern. “However, the western portion of the site, particularly the area proposed for the Western Holiday Homes, is more sensitive. “In my opinion, introducing built form into this area has the potential to affect views from locations that currently offer a high degree of natural character and visual amenity.” That western section was a no-go zone for the original Smith’s Beach development proposal because of its “wilderness-like qualities” and therefore was not even part of the 2009 rejection decision. But the new proponent has expanded the project’s footprint from the 2009 proposal’s 16.4ha to 22.4ha, mainly through its encroachment on that previously untouchable area, making it more than one-third bigger. And that was approved. That’s not the only irregularity that the EPA has allowed to occur in the most sensitive coastal area on the site. Development on the western side was sought in the proponent’s 2021 plan on the basis that 16ha of that “wilderness-like” land would be ceded to the Cape Leeuwin National Park. The EPA has now recommended that it remain in the Fini consortium’s private ownership under a conservation covenant. “The galling thing is that the only reason they allowed development on that land was to consolidate the national park,” the former director of planning and development at the City of Busselton, Nigel Bancroft, said. “It’s still under private ownership. The only way to long term secure that land is for it to go into Crown ownership.” The reason for the change is quite extraordinary. The government didn’t want it in the directly-adjoining national park. In response to questions, the EPA said the Department of Biodiversity, Conservation and Attractions (DBCA) advised the proponent that this area wasn’t “identified for management” in the national park’s plan. “DBCA suggested an alternative mechanism option for management of the site that would allow the land to be maintained in private ownership and protected in perpetuity, for example covenants under State legislation,” the EPA said. Local MP Libby Mettam said: “Effectively the door has been left ajar for future development on the conservation estate. Because of its history, because of its significant negative impact on the environment values of the south-west coast, this EPA report must be thoroughly and publicly investigated.” One final note. Suggestions in the media that the project’s opponents had “a win” with the EPA on a so-called universal access ramp, which would have disfigured the local beach, are wrong. The proponent, not the EPA, axed plans last June for that very dodgy contingency — effectively a sea wall exposed in this column in February as further expanding the project’s envelope — after widespread community opposition. There is only one winner from this episode. Everyone knows who it is.