AGC Earthmoving Group Pty Ltd and Shire Of Mundaring
[2008] WASAT 151
•30 JUNE 2008
AGC EARTHMOVING GROUP PTY LTD and SHIRE OF MUNDARING [2008] WASAT 151
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 151 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:416/2006 | 27 JUNE 2007, 7-8 APRIL 2008, 17 APRIL 2008 | |
| Coram: | MR P McNAB (MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 30/06/08 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Review Allowed | ||
| B | |||
| PDF Version |
| Parties: | AGC EARTHMOVING GROUP PTY LTD SHIRE OF MUNDARING |
Catchwords: | Town planning Development application Extractive industry Raw materials Sand mining Rural area Area zoned General Rural Use not prohibited but use required Shire approval Subject land was cleared farming land Land adjacent to State forest Referral to EPA Water catchment issues Some neighbouring land zoned for water catchment Objections from neighbours concerning preservation of rural lifestyle Amenity concerns regarding dust, noise, and traffic impact Proposal would upgrade some roads EPA deciding to not formally assess application Larger unrelated sand mining operation regulated as mine on nearby State land Complaints concerning neighbouring operation Significance of State Policy on Basic Raw Materials Policy favouring continued supply of such basic raw materials Applicant satisfactorily addressed regulatory concerns Application for review allowed given scale and impact of proposed operation Approval given for five years operation Conditions to be imposed limiting environmental and amenity impacts |
Legislation: | Environmental Protection (Noise) Regulations 1997 (WA) Environmental Protection Act 1986 (WA) Metropolitan Region Scheme, cl 29(1)(b) Shire of Mundaring Town Planning Scheme No 3, cl 1.13, cl 3.1(9), cl 4.17, cl 6.7 |
Case References: | Burns and Commissioner of Soil and Land Conservation [2006] WASAT 83 Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28 Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140 Townsend and Shire of Donnybrook/Balingup [2005] WASAT 276 |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside and substituted in its place will be a decision to give planning approval for the applicant's sand mining operation for five years from the date of these orders upon the conditions to be finalised or agreed upon by the parties within 21 days, being conditions not inconsistent with conditions already agreed to or otherwise inconsistent with these reasons.,3. The parties have liberty to apply. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : AGC EARTHMOVING GROUP PTY LTD and SHIRE OF MUNDARING [2008] WASAT 151 MEMBER : MR P McNAB (MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Town planning - Development application - Extractive industry - Raw materials - Sand mining - Rural area - Area zoned General Rural - Use not prohibited but use required Shire approval - Subject land was cleared farming land - Land adjacent to State forest - Referral to EPA - Water catchment issues - Some neighbouring land zoned for water catchment - Objections from neighbours concerning preservation of rural lifestyle - Amenity concerns regarding dust, noise, and traffic impact - Proposal would upgrade some roads - EPA deciding to not formally assess application - Larger unrelated sand mining operation regulated as mine on nearby State land - Complaints concerning neighbouring operation - Significance of
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State Policy on Basic Raw Materials - Policy favouring continued supply of such basic raw materials - Applicant satisfactorily addressed regulatory concerns - Application for review allowed given scale and impact of proposed operation - Approval given for five years operation - Conditions to be imposed limiting environmental and amenity impacts
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Act 1986 (WA)
Metropolitan Region Scheme, cl 29(1)(b)
Shire of Mundaring Town Planning Scheme No 3, cl 1.13, cl 3.1(9), cl 4.17, cl 6.7
Result:
Review Allowed
Category: B
Representation:
Counsel:
Applicant : Mr I Rogers
Respondent : Mr P Wittkuhn
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Burns and Commissioner of Soil and Land Conservation [2006] WASAT 83
Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28
Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140
Townsend and Shire of Donnybrook/Balingup [2005] WASAT 276
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Summary of Tribunal's Decision
1 ACG Earthmoving Pty Ltd first applied to the Shire of Mundaring back in 2004 for planning approval to mine river sand on a large rural lot located at The Lakes, in the Shire of Mundaring. About 4% of the lot would be used for sand mining, with relatively limited operations on site. The proposed development was in a water catchment area.
2 The application was refused, and a similar application was refused in 2006. A number of the owners of neighbouring lots objected to the proposal because they saw it as inconsistent with a rural lifestyle and rural pursuits. A nearby similar, but larger operation on State land, regulated under a mining lease, had been noticed by these neighbours. There were concerns about such matters as noise, dust, traffic volume and whether the roads (mostly unsealed) could accommodate the proposal.
3 However, an extractive industry of this nature was not prohibited by the Shire's planning scheme. Further, a State planning policy stressed the need for such activities to take place in appropriate cases. A decision had to be made on the merits of the proposal, taking into account the State policy on raw materials balanced against environmental and amenity concerns.
4 The proposal would take place in a catchment area and concerns about water management and salinity were also raised. The Environmental Protection Authority declined to formally assess the proposal, but it and the State water agencies had offered their input and advice on the matter.
5 The Tribunal determined that the applicant had satisfactorily addressed regulatory concerns and that with appropriate conditions in place the development could proceed, given its relatively limited scale and impact. There would be some amenity impacts on a few nearby residents, but some aspects of amenity would actually improve, as certain roads would be upgraded.
6 The Tribunal therefore allowed the review and the decision under review was set aside. Approval was given for the development to operate, upon certain conditions, for five years.
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Introduction
7 This review concerns a proposal by ACG Earthmoving Pty Ltd (applicant) to develop a relatively small river sand extraction industry on a large rural property on Abercorn Road, The Lakes, in the Shire of Mundaring (Shire or respondent) for five years. The proposed activity is not prohibited under the relevant planning framework, but requires planning approval from the Shire or, on review, this Tribunal. A development application seeking planning approval for this proposed industry was refused by the respondent Shire in 2004 and again in 2006. The applicant corporation has sought a review of that later refusal.
8 The review raises various amenity and environmental issues including issues to do with dust control, traffic volume and the impact upon roads, traffic and operational noise, and water concerns (the proposal is in a catchment area and it may potentially affect water quality and water management). Several nearby residents have voiced strong objections to the proposal as inimical to their rural lifestyle and amenity expectations.
9 The matter was also referred to the Environmental Protection Authority after the review was commenced in this Tribunal.
The subject land and its environs
10 The subject land is a large rural lot of approximately 223 hectares, formally described as No 4975 (Lot 5) Abercorn Road, The Lakes in the Shire of Mundaring. The Metropolitan Region Boundary (on Goods Road) sits, in part, on the northern side of the subject land. Thus, to the north, is the commencement of the jurisdiction of the adjoining local government, the Shire of Northam.
11 The land has been developed by the construction of two earthen dams and a ground water bore. The land is also situated in the Mundaring Weir Catchment Area and is a Public Drinking Water Source Area, an issue which has featured prominently in these proceedings. However, unlike surrounding land, the subject land is not reserved as "Water Catchment" under any planning scheme.
12 The Tribunal has had the benefit of a view of the land and roads in the immediate vicinity of the subject land.
13 Abercorn Road is an unsealed public road of reasonable quality on the southern boundary of the subject land; the proposal contemplates access on a smaller unsealed road - almost a rutted track in places - that traverses the northern
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- boundary of the land (that is, Goods Road). Both roads connect (towards the West) to the Great Eastern Highway via a partly sealed road: Flynn Road. Partial upgrading of those roads is proposed by the developer. These matters are discussed in more detail below.
14 The surrounding land is either broadacre rural in nature (with evidence of privately owned, mostly cleared, undulating land and associated farming activities) or is otherwise State Forrest or is owned by the Water Corporation of WA (with such land remaining in its natural state).
15 These lands (that is, to the immediate north-west, within the Shire of Northam) also play host to an existing and larger sand mining extraction industry ("Action Sands") which is serviced by Goods Road. The operator of that industry has no connection with the applicant in these proceedings. The Tribunal understands that that operation is governed by a mining lease on Crown (State) land or Crown reserve (State) land which will expire in about seven years (see also cl 4.2 "Extraction on Crown Land", State Planning Policy 2.4). However, the objectors' views and concerns are naturally informed by what they have witnessed in relation to that operation. No doubt members of the Shire Council have been similarly influenced, at least in part, by the perceived impact of this nearby operation.
The proposal
16 The proposal covers 8 hectares of the site (approximately 4% of the subject land). Excavation of the river sand ("sand mining") is proposed to be by way of a bulldozer and front-end loader only; its subsequent removal by truck (in busy periods some 50 trips per day) is contemplated for a fixed period of five years. 100,000 to 150,000 cubic metres per year is expected to be mined. There will not be "any blasting, grinding or milling" on site. Thereafter, certain rehabilitation of the land is proposed. If approved, a written detailed Management Plan will govern the details of the operation. This plan includes such matters as operating hours (5.5 days per week within normal daylight hours of operation). If approved, the plan will become part of the conditions of operation.
Planning framework
17 It is common ground that the subject land is zoned "General Rural" under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3) and "Rural" under the Metropolitan Region Scheme (MRS). It is also common
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- ground that the proposal is to be classified as an "Extractive Industry" under TPS 3 which, under Table 1, is an "AA" use requiring advertising and the approval of the Shire (or, on review, this Tribunal). The Tribunal has had regard to the factors prescribed in TPS 3 at the following clauses: cl 3.1(9) (general objectives of the Zone); cl 4.17 (in particular, matters detracting from rural landscape etc); and cl 6.7 (various matters, including the preservation of amenity, the impact upon services, and noise).
18 Importantly, a State planning policy dealing with extractive industries (State Planning Policy 2.4 "Basic Raw Materials", 2000) has application to the matters under review. That policy is premised upon the notion that a "ready supply of basic raw materials close to established and developing parts of the metropolitan region is … essential in keeping down the costs of land development and contributing to affordable housing.": cl 3.1. At cl 3.4.5 of that policy the following statement appears (emphasis added):
"3.4.5 The policy is designed to facilitate the extraction of basic raw materials close to the major markets in the metropolitan region and to avoid sensitive development close to basic raw material resources which could otherwise inhibit extraction of the resource. The policy also recognises the importance of ensuring the extraction of basic raw materials occurs with minimum detriment to the local amenity and environment … and in a manner which allows for future use and development consistent with long-term planning intentions for the area."
19 Clause 6.3 of that policy also sets out relevant considerations in determining development applications, factors to which we have had regard.
20 A number of other regulatory instruments are discussed, in their own context, below.
The history of the proposal
21 In 1985, the Metropolitan Region Planning Authority (as it was then known) approved a 12 months extractive industry for the subject land. That approval was apparently never acted upon.
22 The proposed development, similar in scope to the current proposal, was first considered by the respondent Shire in 2004. The officers' recommendation was, in effect, that further information should be obtained in relation to
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- the proposal, including a proposal for consultation with certain government agencies. The recommendation was as follows:
"A. The applicant be required to submit a Management Plan in accordance with the Shire's proposed Extractive Industry Local Laws and the WA Planning Commission's Statement of Planning Policy 2.4, including a Post Closure Management Plan and Revegetation Plan, to the Satisfaction of the Executive Manager Statutory Services.
B. Subject to the satisfaction of A above, Council, pursuant to Section 38(5)(b) of the Environmental Protection Act 1986 refer the proposed Extractive Industry application on Lot 5 Abercorn Road, The Lakes to the Environmental Protection Authority for assessment.
C. Council staff seek written comment from the Department for Conservation and Land Management on that Department's preparedness to allow use of Goods Road as the haulage route for this Extractive Industry proposal."
24 "[Preamble to Committee Recommendation:]
The Committee noted the submissions received and considered that the application should be refused, without referral to the Environmental Protection Authority, due to the potential of the extractive industry to prejudice future rural subdivision of the area; place an unacceptable burden on the local road system; be incompatible with the Water Corporation's planning for the catchment; and adversely affect the rural amenity of the area.
25 [Council's resolution adopted from their Committee's resolution:]
That Council refuse the application for Planning Approval for an extractive industry on Lot 5 Abercorn Road, The Lakes for the following reasons:
1. The development would be prejudicial to the future rural subdivision of the area.
2. Cartage vehicles servicing the development would degrade the quality of the local road system and place an undue burden on the Shire for maintenance of those roads.
- 3. The development is not supported by and not compatible with the Water Corporation's planning for the catchment area.
4. The development would adversely affect the amenity of the area."
The applicant's 2006 proposal
26 The current planning application the subject of this review was received by the respondent on 3 August 2005. The proposal is substantially the same as that considered in 2004. Despite a recommendation from the respondent's planning staff for approval upon extensive conditions, in October 2006 the Shire refused the application, adopting the same reasons enunciated by the Shire from 2004. A review was commenced in this Tribunal on 22 November 2006.
27 In June 2007 the review was adjourned because of the Tribunal's concerns with the state of the evidence, particularly as regards the Department of Water's views (if any). The Tribunal also raised the issue of the prescribed referral to the Western Australian Planning Commission (WAPC) apparently required by cl 29(1)(b) of the Metropolitan Regional Scheme (MRS). This step was subsequently undertaken by the respondent on 5 July 2007 together with information on the review. The WAPC has not sought to make any submission in these proceedings. Subsequently, proceedings involving the Environmental Protection Authority, concerning matters similar to those raised in this review, also contributed to a delay in undertaking a review (see further below).
The EPA's views
28 As has been mentioned, the hearing of this review was affected by "parallel" proceedings involving the Environmental Protection Authority (EPA). Several adjournments were necessary to resolve this matter as the Tribunal, like the Shire, is a relevant "decision making authority" for the purposes of the Environmental Protection Act 1986 (WA). See the discussion in Burns and Commissioner of Soil and Land Conservation [2006] WASAT 83.
29 On 20 July 2007 the proposed development was referred by the Shire to the EPA. The EPA "decided not to subject this proposal to the formal environmental impact assessment process and the subsequent setting of formal
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- conditions by the Minister for Environment". However, it was proposed that certain advice was to be offered to the respondent (or this Tribunal). That decision (conveyed by letter dated 10 September 2007) was appealed to the Minister for the Environment (Hon David Templeman MLA) by two of the neighbouring objectors in this review (Mr R Davies and Ms Paliskis-Bessell). The Minister dismissed the appeals by determination dated 28 February 2008 (Appeal Numbers 77 and 78 of 2007). Included in that determination were the following observations by the Minister:
"In relation to dust, the EPA advised that the proposal complies with the separation distances recommended in the EPA's Guidance Statement No. 3. The EPA also noted that the proponent will implement dust control measures on-site to reduce dust from excavation and loading activities. For these reasons, the EPA concluded that dust was unlikely to have a detrimental impact on neighbours.
The proponent also advised that in addition to employing dust control measures (for example, through the use of water tankers), it was committed to sealing Flynn Road from Great Eastern Highway to Goods Road, with a view to addressing dust problems arising from the use of that road.
Noise was also identified as a concern in the appeals. Through the appeal investigation, the Minister was advised that the proponent was requested to undertake more detailed modelling to identify noise emissions from trucks entering and leaving the site. The results of this further modelling indicated that the overall impact of noise on the closest residences was approximately 40dB(A), which the EPA advised was below the assigned level in the Environmental Protection (Noise) Regulations 1997, which provides a limit of 45dB(A) during day time hours, Monday to Saturday. The proponent stated that the proposal will only operate from Monday to Saturday, during day time hours (i.e. 7am to 7pm). The proponent submitted therefore that the proposal will comply with the assigned levels in the Noise Regulations.
In relation to the clearing of native vegetation, the Minister noted that the extraction site is cleared farm land, and that the proponent stated that no native vegetation would be required to be cleared for the proposal. In the event clearing may be required along Goods Road to provide access for trucks, authorisation would be required under section 51C of the Act.
- One appellant also raised the history of previous decisions in relation to the nearby Action Sands extractive industry development on Goods Road. The Minister understood this was a reference to the decision of the then Minister for the Environment in 2006 to oppose an application for a mining lease on nearby land because it was in an area of State Forest. The Minister noted this decision was made having regard to the presence of native vegetation on the proposed mining lease. As the EPA noted in its appeal advice, the current proposal involves the development of an extractive industry on cleared, freehold farm land, and thus is not comparable with the Action Sands proposal.
Taking into account the issues raised in appeals, the Minister acknowledged that this proposal is likely to increase vehicles using Flynn and Goods Roads, which may also increase dust and noise emissions. The Minister also noted that the proposal may require the clearing of native vegetation along Goods Road to facilitate access by trucks servicing the proposal. The Minister was satisfied however that these impacts, whilst of local importance, were not such that a formal environmental impact assessment is warranted. Rather, it was the Minister's view that these were matters that can be addressed though planning processes, and (if applicable) the terms of an extractive industry licence."
30 As will be seen, the conclusions reached by the Minister are not, broadly speaking, inconsistent with either the evidence presented here or the ultimate findings of this Tribunal.
31 Subsequent steps taken by the EPA in relation to water catchment issues are discussed in detail below. More general "public advice" was provided to the parties, and then to the Tribunal, on 25 March 2008. That material essentially goes to conditions to be imposed if the development proceeds.
Water framework
32 The statutory and policy framework for water quality protection is established by a number of related instruments.
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33 The Statement of Planning Policy No 2.7 "Public Drinking Water Source Policy" was gazetted in June 2003.
34 The objective of the policy is to ensure that land use and development within Public Drinking Water Source Areas (PDWSAs) is compatible with the protection and long-term management of water resources for public water supply. The policy requires that the specific classification of land within source protection areas should be in accordance with the recommendations of any land use and water management strategy published by the Western Australian Planning Commission (WAPC) or any water source protection plan approved by the Water and Rivers Commission (WRC), subsequently the Department of Environment and now the Department of Water.
35 More specifically in addressing land use within PDWSAs the policy sets out the following standard:
"Land uses and developments in all priority source protection areas that have potential to impact detrimentally on the quality and quantity of public drinking water supplies should not be permitted unless it can be demonstrated, having regard to advice from the WRC, that such impacts can be satisfactorily managed."
36 The Department of Environment is responsible for managing and protecting the State's water resources. In June 2005 the Department published a Water Quality Protection Note "Risk Assessment of Public Drinking Water Source Areas". This note described the Department's approach to the assessment of risks (to drinking water quality) in Public Drinking Water Source Areas.
37 The risk assessment approach distinguishes between hazards and risks. A hazard is defined as "a biological, chemical, physical or radiological agent that has the potential to cause harm" while a risk is defined as "the likelihood of identified causing harm in exposed populations in a specified time frame, including the magnitude of that harm and the consequences".
38 Hazards are assigned a Management Priority (High, Medium or Low) to ensure appropriate resources, mitigation and control measures are focused on delivering positive outcomes as part of the risk response. The findings of the risk assessment work are incorporated into Drinking Water Source Protection Assessments and Drinking Water Source Protection Plans prepared for each PDWSA.
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39 The Helena River Salinity Situation Statement was completed by the Department of Water in May 2007. The Department of Water is designated as the lead agency for coordinating efforts to limit or lower salinisation of existing or potential water supplies in key Water Resource Recovery Catchments. An important component of the Department's work is to assess both the current state of the targeted rivers and to evaluate options available to recover/retain stream salinity to drinking water levels.
40 The report recommends the maintenance of clearing controls in the catchment and the management of the remaining cleared areas, including the consideration of more land purchases in these areas. In the light of these recommendations the report also recommends the preparation of a catchment management plan detailing actions, timeframes and responsibilities. The concluding section of the report sets out the steps involved in establishing such a plan. The evaluation of management options will include the definition of water quality objectives, and the evaluation, with stakeholder input, of scenarios to meet the objectives. The plan would also include an implementation strategy and the identification of funding sources. Mr Smith, the author of the Helena River Salinity Situation Statement, gave evidence that the report, while it is publicly available, has not to date been formally released by the Director General of the Department of Water.
41 The Mundaring Weir Catchment Area Drinking Water Source Protection Plan was released in June 2007. It was prepared by the Department of Water to report on the activities and risks to water quality within the Mundaring Weir Catchment and to recommend management strategies to minimize the identified risks.
42 Importantly, the plan is intended to be used to guide State and local government land use planning decisions. It thus has direct relevance to decision-making by this Tribunal in an appropriate case.
43 The report suggests that private land in the catchment should be managed for Priority 2 water source protection. Based on the current land use activities, it is recommended that the current intensity of private land is maintained, and that support is provided to private landowners to reduce the potential risk of contamination.
44 The report suggests that the Priority 1, 2 and 3 classifications proposed for this catchment have fundamental water quality objectives of risk avoidance, risk minimization and risk management, respectively.
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45 Table 1 sets out land use, potential water quality risks and recommended strategies. In regard to sand mining (which, in our view, is a classification encompassing the present proposal) Table 1 sets the Management Priority as "Low". The table suggests that the risks to water quality can be avoided through proper management such as the maintenance of roads and buffer zones, and ensuring that all mechanical servicing is done outside the catchment. It also notes that the "smaller the scale of the operations, the smaller the risks to water quality are".
Water evidence
46 As has been mentioned above, the proposed sand mining operation the subject of this review was referred by the respondent to the Environmental Protection Authority (EPA) in July 2007.
47 In dealing with the matter the EPA received advice from the Department of Water which was also conveyed to the respondent on 15 August 2007. This correspondence advised that the Department of Water's Water Quality Protection Note "Extractive Industries within Public Drinking Water Source Areas" (2000) considered extractive industries to be an acceptable land use, subject to conditions. The Department noted that this position was supported by the Water Quality Protection Note "Land Use Compatibility in Public Drinking Water Source Areas" (2004) and was also consistent with the Statement of Planning Policy2.7 "Public Drinking Water Source Policy".
48 The advice raised a number of potential issues, which did not explicitly include salinity, and set out a number of conditions to be considered in establishing the level of assessment for the proposal which included the following:
• A Management Plan
• Surface and Ground Water Monitoring
• Installation of several piezometers
• Install vegetated buffers to water courses
• No vehicle servicing on site
• Fuel management provisions
• Accessibility for inspections
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- • A Rehabilitation Plan
49 On 17 March 2008, the Department of Water wrote to the solicitors for the respondent Shire advising that the subject land lies within the "high salinity risk area" of the catchment and in the absence of specific monitoring/modelling of the proposed land use with respect to groundwater conditions and salinity, that the Department considered in this case, that the proposed land use presents "an unacceptable risk to water quality".
50 On 19 March 2008 the Department of Water provided further advice to the Shire's solicitors responding to a submission from the applicant to issues raised by the Department in their correspondence of 15 August 2007. This advice, in dealing with ground water and salinity, suggested the need for ground water monitoring; a further explanation on the hydrological impacts of the removal of overburden and reforestation over local recharge areas rather than a return to grazing.
51 At the hearing Mr Smith (the expert witness on water called by the respondent) reiterated the Department's position that the proposal was not acceptable from the point of view of salinity. He advised that the cleared area in the north-east sector of the catchment (which includes the subject land) contributes 63% of the salt load within the catchment.
52 He argued that the proposed excavation exacerbated salinity in two ways: the distance between the ground surface and the water table would be reduced, and the basin created means that nearly all the rainfall landing on the area would percolate down to the water table.
53 Mr Smith also suggested that the Department's "recommended 2 [metre] vertical separation distance is misplaced in the context of a hill water catchment context". Further, he found the lack of reference to salinity in the Baseline Hydrological Investigation (supplied by the applicant) a surprising omission. It was his expectation that where a proposal presented a significant salinity risk a full hydrological study would be undertaken.
54 Ms Cowell, an expert environmental witness called by the applicant, argued that the proposed development would not impact on water resources as this type of mining is deemed by the Department of Water's Water Quality Protection Note "Land Use Compatibility in Public Drinking Water Source Areas", to be a land use that is "compatible with conditions" within "all priority classification areas that are a drinking water source". She submitted that this may require "specific conditions" which could be attached to any approval.
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55 Ms Cowell also gave evidence that the relevant database listed the drilling depth of the present ground water bore on the subject land as 42.75 metres which suggested a very low groundwater table.
56 In the Joint Expert Witness report prepared by Mr Smith and Ms Cowell, after extensive discussion between them, the parties' experts agreed that "salinity is an existing issue" and that "an open, sandy excavated area could increase the recharge of fresh water to the salty groundwater table". The parties also agreed that "further investigations, which may include drilling and monitoring, may be required to gain a greater understanding of the catchment processes in regards to salinity".
57 However, Mr Smith and Ms Cowell agreed that "the Mundaring Weir Catchment Area Drinking Water Source Protection Plan identifies sand pits and gravel pits as low risk activities in the catchment" and, importantly, that "there could be a net environmental benefit if (i) [relevant] areas of Lot 5 Abercorn Road were replanted with deep-rooted perennial vegetation during the operation and (ii) additional revegetation follow[ed] the cessation of the excavation" (emphasis added).
58 Given the evidence before the Tribunal, particularly as reflected in the joint statement prepared by Mr Smith and Ms Cowell (which the Tribunal accepts), the issues associated with water quality and salinity go to conditions.
Traffic Evidence
59 As has been indicated, the access route to the proposed development is from the Great Eastern Highway, just west of The Lakes turnoff, along Flynn Road, for approximately 5 kilometres and then a further 5 kilometres along Goods Road, which appears to be an ungazetted gravel track. Flynn Road is currently an unsealed gravel road which varies in width from approximately 6.5 metres to 8 metres. Goods Road is constructed to a lesser standard, and Abercorn Road, which provides the sole access to neighbouring Lot 6 and alternative access to Lot 11, is not a formed road.
60 The applicant has given an undertaking to seal Flynn Road (and that undertaking forms part of the proposal before the Tribunal), and the final 2 kilometres along Goods Road will require construction to an appropriate standard.
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61 The respondent raised issues in regard to the low capacity of the existing road system, the amenity impacts of dust and noise connected with truck movements, and potential safety issues associated with allegedly speeding trucks.
62 These concerns were reflected in the witness statements of Ms Stewart (Lot 6, Abercorn Road), Ms Paliskis-Bessel (Lot 11, Abercorn Road) and Mr Davies (Lot 1, Flynn Road), three residents residing on Abercorn Road, Goods Road and Flynn Road respectively. Ms Paliskis-Bessel gave evidence that trucks sped and "virtually always [drove] in the middle of Flynn Road", a view shared by Ms Stewart.
63 Mr Shaw, an expert witness in traffic engineering called by the applicant, gave evidence that currently Flynn Road carries 70 vehicles per day (vpd). The truck movements generated by the proposed sand mining operation are estimated to be 60 truck movements per day generating an estimated total number of 130 vpd on Flynn Road.
64 Mr Shaw, while accepting that an increase in traffic flow on Flynn Road could generate increased risks of accidents, argued that changing the road environment by sealing it and providing appropriate signage would reduce potential accident rates. He suggested that these two factors would, for the increase in flows predicted for the development, tend to cancel each other out. He also suggested that the sealing of the road would reduce the dust and noise impacts associated with existing truck movements on this road.
65 Under cross-examination the issue of driver profiles was raised with Mr Shaw. It was put to him that truck drivers, being subject to commercial pressures, tended to exceed speed limits on such roads. Mr Shaw advised that he was not aware of any research on this issue and confirmed that driver profiles were not considered in road design. Under re-examination he suggested however that it was not uncommon for conditions on operations such as the one under review to require adherence to relevant work and safety instructions to drivers accessing the property.
66 A final issue was whether cartage vehicles servicing the development would degrade the quality of the local road system and place an undue burden on the Shire. In regard to this matter, Mr Fairfoul, an expert planning witness called by the applicant, provided evidence that the provisions of the road traffic laws provided a mechanism for the respondent to recoup maintenance costs.
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67 Based upon the commitment of the applicant to seal Flynn Road and to upgrade Goods Road (to be enforced by appropriate conditions), and the expert evidence provided by Mr Shaw, the Tribunal has reached the view that such an upgraded road system would be capable of dealing with the increased truck movements associated with the proposed development.
Amenity objectors from neighbours
68 As has been mentioned, three witness statements from certain objectors residing in the locality of the proposed development were tendered by the respondent. This evidence raised a number of issues in regard to the perceived impacts of the proposed development on the amenity of the locality. A summary of that evidence is as follows.
69 Each of these witnesses emphasized the rural characteristics of the area which attracted them to live there in the first place. These included the "beauty and peace of the place", the "isolation, the peace and quiet and the pristine bushland" and "its isolation in a then pristine catchment area". Mr Davies also suggested that the fact that Flynn Road was a no-through road led to an expectation of limited traffic.
70 These residents also raised a number of issues in regard to the impacts of the other current sand mining operation (to the north, off Goods Road) on the amenity of the locality. These included the noise and dust of on site operations, the dust and noise of truck movements along Flynn and Goods Road, and the dangers associated with truck movements on these roads.
71 In her witness statement Ms Paliskis-Bessell said dust from truck movements was a constant problem, as was the rumbling of trucks up and down Goods Road where the metal-on-metal sound of the truck tray was the main problem. Both Ms Stewart and Ms Paliskis-Bessell raised concerns over traffic safety and provided evidence that trucks tended to travel both at speed and in the middle of Flynn Road.
72 The concern of these residents was essentially that the existing problems which they experienced from the existing unrelated operation would be exacerbated should the proposed development proceed.
73 Ms Stewart suggested that watering of any unsealed road was unlikely to be effective in suppressing dust, and that dust would affect the quality of their water supply if roofs became covered with dust. She also expressed concern that sand mining could cut into the aquifer destroying their water supply. Ms Paliskis-Bessell argued that dust from trucks on Goods Road and Flynn Road would be exacerbated; while the sealing of Flynn Road might reduce
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- dust it was likely to add to the dangerous speeds at which trucks tended to travel. The noise from such an extractive industry was also likely to be a problem.
Noise issues
74 The joint witness statement of the two noise experts engaged in the matter (Mr T Reynolds and Mr N Della Gatta) concluded that provided certain operational matters were complied with then the proposal would comply with the Environmental Protection (Noise) Regulations 1997 (WA). These operational limitations were as follows:
"1. Operations are [to be] during the day period, being [7 am] to [5 pm] Monday to Saturday (excluding Public Holidays).
2. The overburden will be pushed up, similar to that shown on [a plan showing the bund location and works area] and will be a minimum of 3 metres high.
3. Workings will take place from the east, towards the west and with a minimum face height of 3 metres.
4. It is also understood that there will normally only be [one] full time employee on site. Therefore, there will be some diversity in the operation of equipment. Only [two] items of plant ([a front end loader], water cart, dozer, grader) to be operated at anyone time. We note that this requirement excludes the trucks.
5. To minimise noise emissions from impact type noise emanating from empty truck movements on site, the speed limit on site should be limited to 20 [kilometres per hour] and the road shall be maintained in a good condition without corrugations."
75 Noise issues will be considered immediately below in the Tribunal's discussion of the planners' views.
Planners' evidence
76 Planning evidence in the matter was provided by two expert witnesses; Mr Allerding called by the respondent, and Mr Fairfoul called by the applicant.
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77 The planning evidence addressed four main issues:
• Whether the proposal was likely to be prejudicial to the future subdivision of the area.
• Whether the proposal would degrade the quality of the road system.
• Whether the proposal will result in impacts upon water resources.
• Whether the proposal was likely to impact upon the amenity of the area in terms of noise and dust.
78 The first two of these issues were effectively addressed in the joint expert report prepared by Mr Allerding (called by the respondent) and Mr Fairfoul (called by the applicant) where they agreed that "the proposal will not be prejudicial to any proposed future subdivision" and that in regard to road maintenance "the requirement to establish an agreement [to upgrade] as part of the management plan should be a condition of an approval".
79 In dealing with the issue of the impact upon water resources, the parties' experts agreed that "any impact to the catchment should be addressed as part of the consideration of this matter". While Mr Fairfoul contended that with the report by 360 Environmental (a firm of environmental consultants) and the corresponding witness statement of Ms Cowell (see above) this matter had been satisfactorily addressed, this was not a view shared by Mr Allerding. Mr Allerding did, however, give evidence that in his view all the water issues, with the exception of salinity, could be resolved though effective management of the proposed operation. Further to this he suggested that should there be an agreement between the Department of Water and the applicant on appropriate mechanisms to address salinity that this issue would then fall away.
80 In addressing the amenity issues, the parties' experts agreed that "the existing road conditions result in dust and noise" and that "the sealing of Flynn Road will minimize the occurrence of dust" on that road.
81 Mr Fairfoul argued that the transport noise on Goods Road could be minimized by grading. Mr Allerding suggested that it was difficult to establish whether noise on Goods Road would be an issue and potential impacts on the Paliskis-Bessell residence was the major concern. Evidence was provided that this residence is located approximately 500 metres south of Goods Road. In regard to Flynn Road, the potential noise impacts on the Davies'
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- residence was the major issue although such impacts, it was argued, could potentially affect two further nearby lots. The Davies' residence is approximately 500 metres from Flynn Road.
82 While truck noise on roads does not fall directly within the ambit of the Environmental Protection (Noise) Regulations 1997 (WA), evidence was provided that noise modelling had been undertaken by an expert (Mr Reynolds) on Goods Road as part of the EPA assessment of the project. This modelling concluded that noise levels from truck movements on this road would be within comparable or analogous parameters established by the regulations.
83 In regard to dust on Goods Road, Mr Fairfoul contended that the use of a water cart would minimize its occurrence while Mr Allerding argued that additional examination of the appropriateness of the proposed measures for management of dust was required. While the EPA generic buffer distances for separation distances between industrial and sensitive land uses did not apply to roads, the closest residence here is 500 metres from Goods Road. The generic buffer for "sand and limestone extraction" is 300-500 metres depending upon the operation's size (see further below). Mr Allerding gave evidence that he would be prepared to accept measures to control dust on Goods Road put forward by a dust expert.
84 In terms of the amenity impacts of the sand mining operation itself, the issues went to the noise of front end loaders, particularly metal-on-metal when tipping into trucks, the movement of trucks on the site and the potential dust impacts.
85 In regard to the management of noise on the site, Mr Allerding suggested that an agreement would be required on both speed limits for trucks on the site and the construction of the bund surrounding the operation (in part). While neither of the expert witnesses took issue with the evidence of the noise experts, Mr Allerding raised concerns over potential noise impacts during the construction of the bund and the initial stages of excavation, and in regard to the enforcement of speed limits on site.
86 While the potential of dust arising from the sand mining operation was identified in the respondent's final Statement of Issues, Fact and Contentions the issue was not explored in any detail in the hearing.
87 Sand mining constitutes an "Extractive Industry" under cl 1.13 of the respondent's TPS 3.
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88 In June 2005 the EPA published a guidance statement: Separation Distances between Industrial and Sensitive Land Use. This statement was developed to provide advice about the minimum requirements for environmental management which the EPA expects to be met in proposals. It addresses typical emissions which include gaseous and particulate emissions, noise, dust and odour. Appendix 1 of the statement deals specifically with sand and limestone extraction and, as mentioned, recommends a buffer of 300 metres to 500 metres between the boundary of the area that may potentially be used by an industrial use and sensitive land uses which includes residential developments.
89 The closest sensitive land use to the proposed operation is the residence of Ms Stewart and evidence was provided that this residence is approximately 1260 metres from the area to be excavated.
Conclusions
90 It is convenient first to deal with the central question of rural amenity and the position of the rural residents who have objected here.
91 Even allowing for the fact that rural areas are not immune from noise and related issues ("Rural areas generate a variety of 'externalities' - mainly noise and dust emissions. One cannot expect to reside in such a zone and necessarily expect a quiet and serene rural environment.": Marley-Duncan v Corporation of the Town of Gawler[2003] SAERDC 28 at [21] cited in Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140 at [62]), the objectors still remain troubled that their "idyllic" lifestyle might be affected by an activity (here an extractive industry) which they see as wholly counter to the notions of rural living, especially in an area such as here where the subject land forms a "quiet rural cul-de-sac". However, it is well-settled that the noise and other nuisances that may be expected from the class of potential activities permitted or contemplated (if approved) in rural areas produces no absolutes in favour of objecting residents: see, for example, the discussion of "rural amenity" in Townsend and Shire of Donnybrook/Balingup [2005] WASAT 276 at [54]-[59].
92 The Tribunal is not unsympathetic to the views of the objectors. (However, we note that it is a view which is coloured at least in part by concerns about an unrelated and larger extractive industry, regulated differently, and located to the north on State land.) There will be some impact upon their amenity, but some things will also improve; for example, some roads will be partially upgraded.
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93 The task of the Tribunal is essentially to balance such concerns against particular non-prohibited land use proposals, after taking all relevant matters into account (see the criteria under both TPS 3 and State Planning Policy 2.4 "Basic Raw Materials", referred to above). Critically, such an exercise of judgment must also take into account the broadly facilitative premises of State Planning Policy 2.4, which are discussed under the heading "Planning Framework", above.
94 In our view, the present proposal, given its scale and relatively limited impact, is positively contemplated by the planning framework as a potential land use if after thorough examination of any amenity and environmental concerns or factors (and having regard to such conditions as may be appropriate), enquiry suggests that the overall impact will be justified in the context of the proposal.
95 In our view, the evidence, on balance, suggests that the applicant has objectively and satisfactorily addressed or met every reasonable or relevant regulatory concern expressed by the respondent's witnesses (including the objectors), and that the proposal, given its relative scale, limited impact and fixed duration, is otherwise appropriate for the subject land. The fact that another nearby operation - one larger in scale, located on State land and quite differently regulated - already has an indirect negative impact upon the Shire and its residents cannot be, by itself, determinative of this application which must be assessed upon its merits. That assessment must recognise that the proposal, as we have said, contemplates at least some amenity improvements.
96 Therefore, approval ought to be given to the proposal upon certain conditions, conditions which will reflect the extensive range of regulatory concerns discussed above.
Conditions
97 Both parties have exchanged their without prejudice views in relation to the conditions that should be imposed if the development were to be approved. The parties have already reached agreement on 10 of these conditions. Unfortunately, no agreement could be reached in relation to eight ancillary matters (including disputes on bonds; the extent of certain contributions; maintenance obligations; prevention of dieback; and the latest time for trucks to depart).
98 Further, during the hearing, the noise experts recommended certain additional conditions, and the joint environmental evidence suggested, in effect, that conditions be imposed concerning the planting of deep-rooted
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- perennial vegetation during the operation, and additional revegetation following the cessation of the excavation. In addition, the EPA has suggested certain matters in its public advice note (referred to above); the respondent expressly reserved its position on such EPA suggestions. Additional plans might have to be drawn up, showing, for example, the bund locations and proposed revegetation areas. Some of these matters might be reflected in an amended Management Plan. It will therefore be necessary for the parties to negotiate in good faith on these outstanding matters and to bring in a consolidated set of conditions (with amended plans as may be necessary) within 21 days.
Orders
For the reasons set out above, the orders of the Tribunal are:
1. The application for review is allowed.
2. The decision under review is set aside and substituted in its place will be a decision to give planning approval for the applicant's sand mining operation for five years from the date of these orders upon the conditions to be finalised or agreed upon by the parties within 21 days, being conditions not inconsistent with conditions already agreed to or otherwise inconsistent with these reasons.
3. The parties have liberty to apply.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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