2 THOMAS ROAD PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE
[2020] WASAT 107
•3 SEPTEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: 2 THOMAS ROAD PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2020] WASAT 107
MEMBER: MS M CONNOR, MEMBER
HEARD: 10 AND 11 MARCH AND 16 JUNE 2020
DELIVERED : 3 SEPTEMBER 2020
FILE NO/S: DR 192 of 2019
BETWEEN: 2 THOMAS ROAD PTY LTD
Applicant
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Development - Extractive industry - Extraction of approximately 250,000m3 of sand over period of three years - Removal of up to 2.69 hectares of native vegetation - Located within Priority 2 area of Jandakot Underground Water Pollution Control Area - Rural Groundwater Protection zone - Whether cl 5.20.3 of Shire of SerpentineJarrahdale Town Planning Scheme No 2 precludes approval of proposed development - Principles of interpretation of planning instruments - Land use permissibility - Whether cl 5.20.3 prohibits 'excessive' clearing of land or any clearing of land - Consent authority to have regard to provisions of State Planning Policy 2.3 - Jandakot Groundwater Protection Policy
Legislation:
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Interpretation Act 1984 (WA), s 5, s 18
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 64, cl 66, cl 67, cl 68(2)
Planning and Development Act 2005 (WA), s 252(1), cl 68(1)
Shire of SerpentineJarrahdale Town Planning Scheme No. 2, cl 1.4, cl 3.2.2, cl 5.20, cl 5.20.1, cl 5.20.2, cl 5.20.3
Town Planning and Development Act 1928 (WA)
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr C Wallace |
| Respondent | : | Mr A Nair (Acting as agent) |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | Shire of Serpentine-Jarrahdale |
Case(s) referred to in decision(s):
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38
Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Johnson v Minister for Planning [2018] WASC 334
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rando and City of Gosnells [2019] WASAT 6
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Allerding and Associates on behalf of 2 Thomas Road Pty Ltd (applicant) made an application to the Shire of SerpentineJarrahdale (respondent, Council or Shire) in November 2018 for development approval for a sand extractive operation on Lot 1 (No 1153) Thomas Road, Oakford (subject land or Site).[1]
[1] The Tribunal notes that the Application for Development Approval is dated 21 September 2018 (Respondent's section 24 bundle, dated 19 December 2019 – Exhibit 2 Tab 1). However, the Notice of Determination on Application for Development Approval indicates that the application was received on 5 November 2018 (Respondent's section 24 bundle, dated 19 December 2019 – Exhibit 2 Tab 2) and confirmed at para 13 of the Witness Statement of Mr Thomas James Hockley (Exhibit 6).
The proposed development was advertised by the Shire to landowners of adjoining properties and referred to relevant State government agencies. Twentyfour public submissions were received objecting to the development application on a range of issues relating to traffic, dust, noise, impact on rural lifestyle, impact on groundwater, impact on environment and water usage. Three submissions were also received by the Shire from government agencies.[2]
[2] Department of Water and Environment Regulation; Department of Biodiversity, Conservation and Attractions; and Main Roads Western Australia.
The application for 'Extractive Industry' was refused by the respondent under delegated authority on 6 September 2019 for the following reasons:
1.The proposal results in excessive clearing of vegetation, contrary to Clause 5.20.3 of the Shire of Serpentine Jarrahdale Town Planning Scheme No 2.
2.The proposal is inconsistent with the recommended separation distance to sensitive receptors, in accordance with the Guidelines for the Assessment of Environmental Factors – Separation Distances between Industrial and Sensitive Land Uses.
3.Insufficient information has been provided to demonstrate that the proposal would not have an adverse impact on the amenity of neighbouring residents by way of noise, dust and visual impact.
4.The proposed removal of vegetation would have an adverse impact on the quality of the groundwater resource, contrary to Clause 6.1 of State Planning Policy 2.3 – Jandakot Groundwater Protection.
5.The proposed loss of vegetation would adversely impact on the environment contrary to Clause 67 (n) (i), (o) and (q) of the Deemed Provisions.
6.Insufficient information has been proposed to demonstrate that the proposal would not have an adverse impact on the visual amenity of the area or the environment by way of rehabilitation and end use of the site following extraction.
7.The proposal is contrary to the objectives of Local Planning Policy 4.10 – Extractive Industries by way of location and impact on the environment and amenity of the area.
The applicant, on 13 September 2019 made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the respondent's decision be set aside and the application for development approval be granted.[3]
[3] Respondent's section 24 bundle, dated 19 December 2019 (Exhibit 2) Tab 3.
Although the parties engaged in mediation, the matter proceeded to final hearing for adjudication by the Tribunal.
The Tribunal had the benefit of expert evidence from Mr Dale Geoffrey Newsome, an environmental scientist; Dr Peter Gerald Foster, an air quality specialist and scientist; and Mr Thomas James Hockley, a town planning consultant, called on behalf of the applicant, and Dr Penny Hollick, an environmental scientist; Mr John Edward Hurley, an air quality specialist and scientist; and Mr Andrew Antre Trosic, Director of Development Services at the Shire of SerpentineJarrahdale, called on behalf of the respondent.
On the morning of 10 March 2020, the Tribunal, together with the representatives of the parties and their environmental and planning experts, had the benefit of a view of the subject land and immediate locality.
Subject land
The subject land is more particularly described as Lot 1 on Diagram 29600, being the whole of the land contained in Certificate of Title Volume 1996 Folio 510 and is 7.4386 hectares in area.[4]
[4] Respondent's section 24 bundle, dated 19 December 2019 (Exhibit 2) Tab 1 Annexure 3.
Improvements on the subject land include a dwelling and associated outbuildings. Access to the subject land is via an access gate in the southeastern corner of the lot, which provides vehicular connection to Thomas Road.
The subject land is relatively level in an east to west direction and slopes in a north to south direction, rising to a high point approximately at the centre of the Site. There is an upward slope of approximately 10 metres commencing from approximately 80 metres from the southern boundary to a height of approximately 37 metres at approximately 275 metres to the north of the southern boundary. Continuing to the north, the subject land slopes away to 25 metres approximately 70 metres from the northern boundary.[5]
[5] Witness Statement of Dr Peter Gerald Forster dated 3 April 2020 (Exhibit 20 Annexure 2 page 1 Strategen JBS & G Dust Management, 26 March 2020.
The subject land lies within the Bassendean Dunes system (DoW2015), with a surface geology described as quartz sand.[6] A flora survey undertaken by Strategen Environmental (September 2018) identified that the subject land contains 3.15 hectares of native vegetation, comprised of two native vegetation types (VT1 1.46 hectares in area and VT2 – total area of 1.69 hectares), as well as, cleared and / or developed areas (C – 4.28 hectares) (see Attachment 1). The vegetation types are described as follows:
VT 1Open shrubland of Adenanthos cygnorum and Banksia ilicifolia over Xanthorrhoea preissii and Kunzea glabrescens over closed herbland of Dasypogon bromeliifolius, *Ehrharta calycina, and *Ursinia anthemoides
VT 2Open low woodland of Banksia attenuata, Banksia menziesii and Banksia ilicifolia over Xanthorrhoea preissii and Adenanthos cygnorum over closed herbland of Phlebocarya ciliata, Stirlingia latifolia and Patersonia occidentalis
CCleared with scattered non-native and ornamental tress and occasional remnant native trees.[7]
[6] Respondent's section 24 bundle, dated 19 December 2019 (Exhibit 2 Tab 1) Strategen Environmental Desktop Environmental Review Draft (March 2017) page 2.
[7] Respondent's section 24 bundle, dated 19 December 2019 (Exhibit 2 Tab 1) - Strategen Environmental Desktop Environmental Review Draft (September 2018) page 23.
There is some dispute between the environmental experts about the condition rating of the native vegetation across the subject land. Mr Newsome considers that the southern patch (VT 2) is in 'Very Good' condition and the northern patch (VT 1) is in 'Good to Degraded' condition. Dr Hollick considers the southern patch (VT 2) to be in 'Very Good to Excellent' condition and the northern patch (VT 1) is a mosaic of 'Good and Degraded' condition vegetation with each constituting approximately half of the area.[8]
[8] Conferral Report of Dr Penny Hollick and Dave Newsom dated 4 March 2020 (Exhibit 12 para 4.8).
However, the environmental experts do agree that some of the vegetation on the subject land meets the diagnostic criteria for Banksia Woodlands Threatened Ecological Community (TEC) as listed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).[9] Further, VT 2 is considered to be similar in composition to the section of the Bush Forever Site No 348 (Modong Nature Reserve and adjacent Bushland, Oakford) directly adjacent to the subject land, as well as vegetation in Lot 2, which is located directly to the west of the Site.[10]
[9] Conferral Report of Dr Penny Hollick and Dave Newsom dated 4 March 2020 (Exhibit 12 para 4.9).
[10] Respondent's section 24 bundle, dated 19 December 2019 (Exhibit 2 Tab 1) - Strategen Environmental Desktop Environmental Review Draft (September 2018) page 31.
The subject land is located within a Priority 2 (P2) area of the Jandakot Underground Water Pollution Control Area. The eastern boundary of the subject land directly abuts Bush Forever Site No 348, which is part of Jandakot Regional Park. The south boundary of the subject land abuts Thomas Road, which is a Primary Distributor Road. There are five properties that abut the western boundary of the subject land - Lot 2 is currently vacant; Lots 850 and 851 contain dwellings and disused poultry sheds; and Lot 849 and Lot 848 are used for rural land uses and contain dwellings and outbuildings. Lot 24, the lot immediately to the north of the subject land, is also used for rural purposes and contains a dwelling and a number of outbuildings. The nearest residential property is approximately 150 metres from the western boundary with four other residences within 250 metres. There is also residence within 200 metres of the southern boundary of the subject land.
A Conservation Category Wetland (CCW) (UFI 14740) is mapped immediately north and adjacent to the northeast corner of the subject land. The CCW abuts the Site boundary for approximately 180 metres.[11]
The proposal
[11] Strategen JBS & G Report 26 March 2020 (Exhibit 20) page 1.
The application seeks approval to extract sand resources from an area of the subject land that equates to 4.31 hectares (see Attachment 2).[12] Sand is to be excavated via a front end loader and loaded directly into trucks for transport off site. The operation does not involve mechanical screening of extracted material. The development can be summarised as follows:
[12] Modified Extraction Plan (Exhibit 26).
•estimated extraction of approximately 250,000m3 of sand over a period of approximately three years;
•an extraction depth ranging from 24 metres Reduced Level (RL) at the northern end of the extraction area to approximately 26 metres RL at the southern end of the extraction area. The extraction depth is likely to be 4 to 5 metres but could be as deep as 7 metres at some points on the Site;[13]
•a total of up to 2.69 hectares of native vegetation is proposed to be permanently cleared within the Site;[14]
•hours of operation between 7.00 am to 5.00 pm Monday to Saturday;
•approximately 50 truck moments per day, which will vary during peak periods;
•a maximum of four staff on site at any given time;
•access via the existing crossover on Thomas Road;
•construction of a 3 metre to 3.5 metre high acoustic bund above Natural Ground Level (NGL) on the northnorthwest perimeter of the extraction area and a 3 metre to 4 metre high acoustic bund above NGL on the south-southwest perimeter of the extraction area;[15] and
•rehabilitation post extraction to allow for the establishment of agriculture uses permissible within the 'Rural Groundwater Protection' (RGP) zone or uses permissible within the future Rural Enterprise zone under draft Shire of SerpentineJarrahdale Local Planning Scheme No 3 (LPS 3).
[13] ts 12-14, 16 June 2020.
[14] Witness Statement of Dale Geoffrey Newsome dated 11 February 2020 (Exhibit 8 Annexure 2).
[15] Respondent's section 24 bundle, dated 19 December 2019 (Exhibit 2 Tab 4) – Herring Storer Acoustics, Acoustic Assessment September 2019 page 4 and Appendix A and ts 11-12, 16 June 2020..
It is intended that extraction will progress in a northern direction and be undertaken in two stages. The first stage will involve clearing and excavation of the southern portion of the Site to the peak of the hill and the second stage will entail clearing and subsequent excavation of the northern portion of the Site.[16] Extraction would include excavation downward whilst also constructing a working bund / batter along the edges of the excavation.[17]
[16] Witness Statement of Dr Peter Gerald Forster dated 3 April 2020 (Exhibit 20 Annexure 2 page 6) Strategen JBS & G Dust Management Plan, 26 March 2020.
[17] Witness Statement of Mr John Edward Hurley dated 6 May 2020, (Exhibit 21) at para 21.
The current driveway along the eastern boundary of the subject land is to be rehabilitated to provide a 20 metre buffer to the adjacent Bush Forever Site. In addition, a 40 metre buffer along the southern boundary, intersected by the access road, is to be rehabilitated to maintain connectivity between the conservation areas east of the subject land and the native vegetation on Lot 2. [18]
Planning framework
[18] Witness Statement of Dr Peter Gerald Forster dated 3 April 2020 (Exhibit 20 Annexure 2 page 4) Strategen JBS & G Dust Management Plan, 26 March 2020.
The following legislation, policies and instruments comprise the planning framework applicable to this application.
The subject land is zoned 'Rural – Water Protection' under the Metropolitan Region Scheme and RGP zone under the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme).
TPS 2 comprises the Scheme Text, the Scheme Maps, Planning and Development (Local Planning Schemes) Regulations 2015 (WA) Sch 2 Deemed provisions for local planning schemes (deemed provisions) and schedule of supplemental provisions contained in Appendix A of the Scheme.[19]
[19] Clause 1.4 of TPS 2.
The use and development of land in the RGP zone of TPS 2 is to be in accordance with the provisions of the Scheme and State Planning Policy 2.3 – Jandakot Groundwater Protection Policy (SPP 2.3).[20]
[20] Clause 5.20.1 of TPS 2
The proposed development is classified as 'Industry Extractive' as defined in Appendix 1 – Interpretations of the Scheme.
Land use permissibility within the RGP zone is determined pursuant to cl 5 20.2 of the Scheme. Industry Extractive is designated as a 'SA' use, which is a use that the Council may, at its discretion, permit the use after notice of the application has been given in accordance with cl 64 of the deemed provisions.[21]
[21] SA use is defined in cl 3.2.2 of TPS 2.
In addition, cl 5.20.3 of the Scheme provides as follows:
In exercising its discretion in respect of the uses specified under clause 5.20.2, and having regard to the provisions of Statement of Planning Policy No. 2.3, the Council shall only permit such uses where it is satisfied that the use does not involve excessive nutrient application or clearing of land, or risk of damage to any on site vegetation or risk of contamination to the Jandakot Groundwater Protection area.
Further, cl 67 of the deemed provisions provides that in considering an application for development approval due regard is to be given to matters set out therein, to the extent that they are relevant to the development. The pertinent matters relevant to this review include:
•the aims and provisions of the TPS 2 (subclause (a));
•the requirements of orderly and proper planning (subclause (b)) including draft Shire of Serpentine Jarrahdale Local Planning Scheme No 3 (September 2019);
•any approved State planning policy (subclause (c)) –
(i)State Planning Policy 1 - State Planning Framework (2017);
(ii)State Planning Policy 2.0 – Environmental and Natural Resources (2003);
(iii)State Planning Policy 2.1 – the Peel – Harvey Coastal Plan Catchment (as amended 2003);
(iv)SPP 2.3, which references Water Quality Protection Note 25 – Land Use Compatibility Tables for Public Drinking Water Source Areas (WQPN 25);
(v)State Planning Policy 2.4 – Basic Raw Materials (2000);
(vi)State Planning Policy 2.7 – Public Drinking Water Source Policy (2003);
(vii)State Planning Policy 2.9 – Water Resources (2006);
(viii)State Planning Policy 3.7 – Planning in Bushfire Prone Areas (2015); and
(ix)State Planning Policy 4.1 – State Industrial Buffer Policy (1997), which references the Environmental Protection Authority's Guidance for the Assessment of Environmental Factors – Separation Distances between industrial and Sensitive Land Uses No 3 (2005);
•any local planning policy for the Scheme area (subclause (g)) - Local Planning Policy 4.10: Extractive Industries (Including Extraction of Mineral Sand and Other Minerals) (LPP 4.10);
•the amenity of the locality, including environmental impacts, the character of the locality and social impacts of the development (subclause (n));
•the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or mitigate impacts on the natural environment or the water resource (subclause (o));
•the suitability of the land for the development taking into account the possible risk of land degradation or any other risk (subclause (q));
•any submissions received on the application (subclause (y));
•the comments or submissions received from any authority consulted under cl 66 (subclause (za)); and
•any other planning considerations the local government considers appropriate (subclause (zb)) –
(i)Shire of Serpentine-Jarrahdale Rural Strategy 2013 Review (2017); and
(ii)Draft Shire of Serpentine-Jarrahdale Local Planning Strategy.
Pursuant to cl 68(2) of the deemed provisions, the local government may determine application for development by:
(a)granting approval for the development without conditions; or
(b)granting approval for the development with conditions; or
(c)refusing approval for the development.
Issues
The parties identified the following four issues for determination in relation to this matter:
1.Whether cl 5.20.3 of TPS 2 precludes approval of the proposed development.
2.Whether the proposed development is consistent with orderly and proper planning.
3.Whether the proposed development would have an unacceptable impact on the environment.
4.Whether the proposed development would have an unacceptable impact on the amenity of the locality.
If issue 1 is determined in favour of the respondent and the Tribunal finds that there is no discretion to approve the proposed development then issues 2 to 4 fall away.
Whether cl 5.20.3 of TPS 2 precludes approval of the proposed development
As a starting point, it is useful to reproduce the full text of cl 5.20 of TPS 2.
5.20RURAL GROUNDWATER PROTECTION ZONE
5.20.1The use and development of land within the Rural Groundwater Protection Zone shall be in accordance with the provisions of the Scheme and Statement of Planning Policy No. 2.3 (Jandakot Groundwater Protection Policy).
5.20.2Land use permissibility within the Rural Groundwater Protection Zone shall be in accordance with the following use permissibilities. All other uses are prohibited within the Zone.
Animal Husbandry AA Aquaculture AA Caretaker's Dwelling AA Dwelling AA Equestrian Activity SA Floriculture (Extensive) AA Fodder and Pasture AA Hobby Farm AA Home Business AA Home Occupation AA Industry Extractive SA Orcharding AA Poultry Farm (Housed) SA Private Tree Plantation AA Radio, TV and Communication Installation AA Public Utility AA Recreation Public AA Stable AA Stall-wayside AA Viticulture AA
5.20.3In exercising its discretion in respect of the uses specified under clause 5.20.2, and having regard to the provisions of Statement of Planning Policy No. 2.3, the Council shall only permit such uses where it is satisfied that the use does not involve excessive nutrient application or clearing of land, or risk of damage to any on site vegetation or risk of contamination to the Jandakot Groundwater Protection area.
As cl 5.20.3 of TPS 2 requires the consent authority to have regard to the provisions of SPP 2.3 in exercising its discretion in respect of the uses specified under cl 5.20.2 of TPS 2, it is appropriate at this point to set out the relevant provisions of SPP 2.3 relating to this application:
2PURPOSE
This policy aims to protect the Jandakot Groundwater Protection area … from development and land uses that may have a detrimental impact on the water resource.
…
Land use planning is guided by priority areas and the principles of risk avoidance, risk minimisation and risk management. The priority areas include … Priority 2 (P2) areas (minimise risks) … This policy reflects a presumption against development or land uses that are inconsistent with the priority areas. …
This policy provides guidance regarding planning requirements that need to be considered in the policy area and should be read in conjunction with the Department of Water's Water quality protection note 25: Land use compatibility tables in public drinking water source areas (as amended).
3OBJECTIVES
The objectives of this policy are:
•To ensure that all development and changes to land use within the policy area are compatible with maximising the longterm protection and management of groundwater, in particular for public drinking water supply;
•To protect groundwater quality and quantity in the policy area in order to maintain the ecological integrity of important wetlands that are hydraulically connected to that groundwater, including wetlands outside the policy area;
•To prevent, minimise, and manage in defined locations development and land uses that may result in contamination of groundwater; and
•To maintain or increase natural vegetation cover over the policy area.
…
5GROUNDWATER PROTECTION PRINCIPLES
Land-use intensification is associated with an increased risk of drinking water contamination. In recognition of this, groundwater protection is based on the following principles:
•The application of the precautionary principle through a presumption against development or land uses that pose a threat to the groundwater resource;
…
•Groundwater dependent ecosystems, including native vegetation and wetlands, provide benefits, including maintaining groundwater quality.
6POLICY MEASURES
6.1Native vegetation and wetlands
The retention of native vegetation and wetlands is beneficial in protecting and maintaining the quality of the groundwater resource and is fundamental to the objective of this policy. Protection and enhancement of native vegetation and wetlands is a key requirement of any new development.
6.2Land uses
This section outlines the acceptability of broad land uses for the policy area.
…
d)P2 areas (Rural- Water Protection zone of Metropolitan Region Scheme)
The acceptability of land uses in the RuralWater Protection zone is based on the objectives of risk minimisation. Low-risk and intensity of development consistent with the Rural zoning is generally supported, subject to appropriate conditions.
…
g)Land use compatibility
Guidance on the acceptability of land uses, activities and subdivision within P1, P2 and P3 areas within the policy area is provided in Water quality protection note 25: Land use compatibility table for drinking water source areas[.][22]
…
6.7Development control provisions
…
d)Existing vegetation is to be retained and rehabilitated to the maximum extent possible to maintain the ecological integrity of the environmental resource and quality of the drinking water resource, particularly on the margins of wetlands.
Respondent's submissions
[22] Table 2 - Compatibility of a land subdivision for the protection of water quality within public drinking water source area included in water quality protection note 25: Land use compatibility table for drinking water source areas denotes 'Industry – extractive (sand quarry)' as being 'compatible with conditions' in P2 areas. (Respondent's section 24 bundle, dated 19 December 2019 (Exhibit 2 Tab 13).
The respondent contends that in addition to the usual considerations associated with exercising discretion with regard to the land uses specified in cl 5.20.2 and cl 5.20.3 of TPS 2 requires the decision-maker to be positively satisfied as to all the matters listed in cl 5.20.3 of TPS 2 before approval can be granted for the development.
The respondent argues that there is no discretion to approve the proposed development as the word 'excessive' only qualifies nutrient application, and if the development involves clearing of land, risk of damage to any on site vegetation, or risk of contamination to the Jandakot Groundwater Protection area, the development cannot be approved. The respondent submits that as the proposed development involves 'clearing of land' it cannot be approved.
Alternately, if the word 'excessive' is read to qualify the 'clearing of land', then the respondent submits that the clearing of at least 2.69 hectares of native vegetation, as proposed by the development, is excessive.
The respondent contends that the clearing of native vegetation is both quantitatively and qualitatively excessive in that:
(a)the clearing proposed is more than 1/3 of the total area of the [Site];
(b)the clearing proposed will destroy virtually all of the remnant native vegetation on the [Site];
(c)the native vegetation that will be destroyed is predominantly classified as being in 'Very Good' or 'Good-Degraded' condition;
(d)the clearing is proposed in an area where the retention of native vegetation is encouraged by the planning framework, in order to maintain the quality of the drinking water resource; and
(e)the 1.54 ha area of native vegetation in 'Very Good' condition contains species identified as Threatened Ecological Community.[23]
[23] Respondent's Statement of Issues, Facts and Contentions dated 19 December 2019 (Exhibit 1 para 63).
Further, the respondent argues that the clearing of at least 2.69 hectares of native vegetation involves actual damage to 'any on site vegetation' and therefore, the proposed development cannot be approved.
Lastly, the respondent argues that maintaining groundwater quality is an issue as the clearing of vegetation also removes the capacity of such vegetation to uptake phosphorous and nitrogen nutrients.
Applicant's submissions
The applicant submits that cl 5.20.3 of TPS 2 must be read in the context of its objectives, namely the Jandakot Groundwater Protection area and consistent with the SPP 2.3. The applicant contends that cl 5.20.3 of TPS 2 requires an evaluation of risk associated with the proposed development, specifically in relation to the groundwater area.
The applicant submits that the words 'excessive nutrient application or clearing of land' comprises a single expression, with the adjective 'excessive' applying to both items that follow. On this reading, the applicant says, that cl 5.20.3 of TPS 2 prohibits excessive clearing of land within the RGP zone, as opposed to any clearing of land. The applicant contends that the fundamental point in how to interpret the provision must be in relation to whether or not the clearing that will be undertaken will have an impact on the groundwater.
The applicant submits that if the intention of the provision is to prohibit any clearing, then it would have been very clearly stated.
Further, the applicant submits that whether clearing is 'excessive' in a given case must be assessed in the context of the proposed development in question and the broader planning framework, including by reference to the types of land uses that are contemplated for the zone and the impact on the Jandakot Groundwater Protection area.
If it is accepted that clearing can occur within the RGP zone, the applicant says, the words 'risk of damage to any on site vegetation' in cl 5.20.3 of TPS 2 must then be taken as referring to vegetation that is not proposed to be cleared under a given development application, in essence, retained vegetation.
In regard to the words 'risk of contamination' in cl 5.20.3 of TPS 2, the applicant submits that this should be read as referring to a material or significant risk, as opposed to a remote or hypothetical possible risk (as any development proposal of any nature could conceivably cause some level of contamination one way or another).
The applicant asserts that any other reading of the provisions in cl 5.20.3 of TPS 2 results in perverse outcomes and would effectively mean that the subject land and other parcels of land in the RGP zone requiring any level of clearing would not be suitable for any kind of development. Such an outcome would effectively operate as a reservation of land, which the applicant submits is contrary to the intention of the drafters of TPS 2.
The applicant contends that there is discretion under cl 5.20.3 of TPS 2 to approve the proposed use on the subject land as:
[i]there would be no excessive nutrient application;
[ii]there would be no material risk of contamination to groundwater;
[iii]there would be no excessive clearing of land, because the proposed extent of clearing is reasonable and commensurate within an extractive industry use, which is a contemplated land use for the zone in question and is unlikely to impact on the groundwater; and
[iv]there would be no material risk of damage to any on site vegetation that is not proposed to cleared. [24]
Tribunal's considerations
[24] Applicant's Statement of Issues, Facts and Contentions date 17 January 2020 (Exhibit 4 para 64).
TPS 2 is a town planning scheme made under the powers conferred by the Town Planning and Development Act 1928 (WA) (as amended) and gazetted on 4 August 1989. Pursuant to cl 68(1) of the PD Act, TPS 2 has force and effect as if enacted by the PD Act. TPS 2 is subsidiary legislation and is therefore a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA) (Interpretation Act). By reason of s 18 of the Interpretation Act a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object.[25]
[25] Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 at [37] (Banks-Smith J).
It is a mainstay of statutory interpretation that the fundamental objective is to ascertain the legislative intention by reference to the language of the instrument read as a whole.[26] Further, planning schemes are to be construed broadly and sensibly, not pedantically.[27] Moreover, the Tribunal, in numerous decisions, has recognised the fact that town planning schemes 'are largely the work of town planners, not parliamentary counsel [and that] they should be read as a whole and applied in a practical and commonsense, and not an overly technical way'.[28]
[26] City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 at [48] (Murphy JA, Mazza JA and Edelman J) (Lamont); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (Brennan CJ, McHugh J, Gummow J, Kirby J and Hayne J) (Project Blue Sky).
[27] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v Minister for Planning [2018] WASC 334 at [125] (Smith AJ).
[28] Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500, at [502], per Wilson SC DCJ (as he then was); cited with approval by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312.
The Tribunal in Rando and City of Gosnells [2019] WASAT 6 at [55] identified the following relevant principles articulated by the Court of Appeal in Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 at [77][86] on the importance of the text of statutory instruments in resolving questions of statutory construction:
(a)The task of statutory construction must begin (and end) with a consideration of the text itself. Where the text is clear, historical considerations and extrinsic materials cannot displace that clear meaning. The language chosen by the legislature is the surest guide to legislative intention. The context, which includes the purpose and policy of the provision and the mischief to which it is directed, may inform that meaning.
(b)The focus on the statutory text is an aspect of the rule of law so as to recognise and preserve the role of the legislature.
(c)Focusing on the statutory text facilitates comprehension of the meaning of the legislation by persons whose conduct it regulates.
(d)The principles of statutory construction are no less important when the relevant legislative instrument is a planning scheme. On this the point the Court noted that (Australian Unity at [82]):
[T]he terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counterintuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
(e)The text should not be read in a manner divorced from its context and purpose. That context and purpose may inform the meaning of the language chosen by Parliament. The meaning of the legislation must emerge from the statutory text, understood in context and having regard to the statutory purpose being progressed.
(f)In construing a planning scheme, it is also relevant that schemes are not usually drafted by Parliamentary Counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. Planning schemes should not be applied narrowly nor pedantically.
(g)Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about a desired or desirable reach or operation of the relevant provisions. Discerning legislative purpose is an objective exercise of statutory construction and is not a quest to ascertain what those who promoted or passed the legislation may have had in mind in when it was enacted. Nor it is appropriate for, in this instance, the Tribunal to construct its own idea of a desirable policy and impute that into the legislature to then be characterised as a statutory purpose.
Applying these principles of interpretation, it is the Tribunal's view, for the reasons which follow, that the respondent's submissions in relation to the proper interpretation of cl 5.20.3 of TPS 2 are correct and the applicant's submissions are incorrect. Consequently, there is no discretion to approve the proposed development.
It is clear that the intent of cl 5.20 of the Scheme, by reference to SPP 2.3, is to ensure that use and development of land within the RGP zone maximises protection against water quality contamination risk in the Jandakot Groundwater Protection area based on the objective of risk minimisation. Land use permissibility within the RGP zone is set out under cl 5.20.2 of TPS 2, however, cl 5.20.3 of TPS 2 provides a further restriction on the permissibility of uses by specifying that the consent authority 'shall only permit uses where it is satisfied that the use does not involve excessive nutrient application or clearing of land, or risk of damage to any on site vegetation or risk of contamination to the Jandakot Groundwater Protection area'.
On a practical and commonsense approach to interpreting the provision and by reference to SPP 2.3, it is plain that 'clearing' and 'on site vegetation' only relates to native vegetation and does not include introduced or exotic vegetation. The relevant objective contained in cl 3 of SPP 2.3 seeks 'to maintain or increase natural vegetation cover' and cl 6.1 of SPP 2.3 refers to the 'retention of native vegetation' and the '[p]rotection and enhancement of native vegetation'.
On a literal reading of cl 5.20.3 of TPS 2 it is equivocal whether the word 'excessive' qualifies both 'nutrient application' and 'clearing of land'. However, when read in the context of the provision as a whole and with the provisions of SPP 2.3, to which the consent authority is to have regard to under this clause, it is clear that the word 'excessive' only qualifies 'nutrient application' and that any clearing of native vegetation on land within the RGP zone cannot be approved under the clause for the following reasons.
Firstly, it is clear on a literal reading of the provision that the consent authority may only permit uses where the use does not involve 'risk of damage to any on site [native] vegetation'. Clearly, if the use cannot cause risk of damage to any on site native vegetation, then the use cannot involve the clearing of native vegetation, as the 'greater includes the lesser'. There is a contextual indication within cl 5.20.3 of TPS 2 that the adjective 'excessive' does not qualify the words 'clearing of land' on the proper interpretation of the provision and the provision only allows approval of a use which 'does not involve … clearing of [native vegetation on] land'.
Secondly, the provisions of SPP 2.3, are given status under the Scheme in the RGP zone by cl 5.20.1 of TPS 2 ('… use and development … shall be in accordance with the provisions of [SPP 2.3]') and cl 5.20.3 of TPS 2 ('… having regard to the provisions of [SPP 2.3]). Clause 6.1 of SPP 2.3 provides that '[t]he retention of native vegetation and wetlands is beneficial to protecting and maintaining the quality of the groundwater resource and is fundamental to the objective of this policy' and '[p]rotection and enhancement of the native vegetation and wetlands is a key requirement of any new development'. In this context and applying a practical and commonsense approach the drafter of the Scheme could not have intended that any (and not just 'excessive') clearing of native vegetation would be allowed in the RGP zone.
Furthermore, apart from the logical inconsistency in the applicant's submission – that 'clearing' of native vegetation is contemplated by cl 5.20.3 of TPS 2 in the RPG zone while 'damage' to native vegetation is not – there is no basis in the provision or elsewhere in the Scheme for reading 'risk of damage to any on site vegetation' as referring only to vegetation that is not proposed to be cleared under a given development application. The applicant's interpretation would involve reading in the words 'that is proposed to be retained' after 'on site vegetation'. Not only is there no basis in the clause and Scheme for reading in these words, but to do so would be inconsistent to the fundamental principles embodied in SPP 2.3, which seek to 'maintain or increase natural vegetation cover over the policy area' and considers the 'protections and enhancement of native vegetation as a key requirement of any new development.'
The Tribunal rejects the applicant's submission that a contrary interpretation to the one put forward by the applicant would result in perverse outcomes suggesting that the subject land and other parcels of land in the RGP zone requiring any level of clearing would not be suitable for any kind of development for the following reasons. Firstly, as stated above, understood in the context of the provisions of SPP 2.3, 'clearing of land' only relates to native vegetation and does not include introduced or exotic vegetation. Secondly, it may well be that there are lots within the RGP zone that will have restricted land use permissibility arising from the construction of cl 5.20.3 of TPS 2, however, this was clearly the intent of the drafters to ensure the protection of native vegetation over the Jandakot Groundwater Protection area in accordance with the objectives of SPP 2.3. Thirdly, there is at least 4.28 hectares of the subject land that has been cleared of native vegetation and capable of some form of development.
Finally, the Tribunal notes that even if the applicant's proposed interpretation of cl 5.20.3 of TPS 2 were correct and the word 'excessive' qualifies 'clearing of land' and 'risk of damage to an any site vegetation' is read as 'risk of damage to any on site vegetation that is proposed to be retained', in the circumstances of this case, the proposed development would still not satisfy the provision and consequently there would be no discretion to approve the proposed development. This is because the clearing of 2.69 hectares out of a total of 3.15 hectares of existing native vegetation on the Site (constituting 85% of the existing native vegetation on the Site), of which, according to Mr Newsome, 1.56 hectares (or 58% of the native vegetation to be cleared) is in 'Very Good' condition and contains species identified as TEC, would be 'excessive' clearing of land for the purposes of cl 5.20.3 of TPS 2.[29] This is particularly so when considered in the context of the principles embodied in SPP 2.3 which promotes, as a fundamental objective, '[t]he retention of native vegetation as beneficial in protecting and maintaining the water quality of the groundwater resource' and considers the 'protection and enhancement of native vegetation as a key requirement of any new development'.
Conclusion
[29] The Tribunal notes that Dr Hollick considers the 1.56 hectares of native vegetation to be in 'Very Good' to 'Excellent' condition - Conferral Report of Dr Penny Hollich and Dale Newsome dated 4 March 2020 (Exhibit 12 para 4.8).
Given the Tribunal's findings on the interpretation of cl 5.20.3 of TPS 2, the proposed development is not capable of approval as there is no discretion to permit the proposed use as it involves the 'clearing of land' that is, clearing of native vegetation and will cause actual 'damage to on site vegetation' on the subject land.
In light of the Tribunal's determination in relation to issue 1, the Tribunal has not considered and expressed findings in relation to the three other issues identified by the parties.
Orders
For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
3 SEPTEMBER 2020
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