AL-BORAICH and CITY OF SWAN
[2020] WASAT 163
•23 DECEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AL-BORAICH and CITY OF SWAN [2020] WASAT 163
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 23 SEPTEMBER 2020
DELIVERED : 23 DECEMBER 2020
FILE NO/S: DR 118 of 2019
BETWEEN: AKEEL AL-BORAICH
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development application - Club premises - Groundwater - Drinking water quality - Risk minimisation - Precautionary approach - Amenity - Orderly and proper planning
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.2.17
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(b), cl 67(o), cl 67(y)
Planning and Development Act 2005 (WA), s 241(1), s 242
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 31(3)
Transfer of Land Act 1893 (WA), s 70A
Result:
Application allowed subject to conditions
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr P Wittkuhn |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301
Dao Ji Association and City of Gosnells [2020] WASAT 10
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68
Fryer and City of Subiaco [2006] WASAT 199
Greenelm Pty Ltd and City of Swan [2010] WASAT 142; (2010) 74 SR (WA) 84
South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76
WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160
Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This proceeding involves an application for development approval on Lot 23 (HN 1) Lakefarm Retreat, Ballajura (Land). The Land also backs onto Hepburn Avenue and has an approximate area of 3.7 hectares.
The applicant is Mr Akeel Al-Boraich who represents the AlTawheed Islamic Association of Western Australia (Inc) (Association). All members of the Association belong to the Iraqi Shia school of Islamic faith (the other broad school of Islamic faith being Sunni).
The application involves the provision of facilities, in the form of meeting halls together with ancillary works such as car parking and amenities, for the Association (the Proposed Development).
The City of Swan (City or respondent) refused the Proposed Development on 15 May 2019. On 31 May 2019 the applicant sought review of the respondent's decision.
A revised proposal was lodged with the respondent on 11 March 2020. By letter dated 19 March 2020, the respondent reiterated its decision to refuse the Proposed Development. Perforce of s 31(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it is the respondent's decision of 31 March 2020 that is the reviewable decision for the purposes of this proceeding.
The primary issue in this proceeding relates to groundwater quality. The Land is within the Priority 2 area for the purposes of State Planning Policy 2.2 Gnangara Groundwater Protection Policy (SPP 2.2). That is, the groundwater is a public drinking water resource.
I heard this matter on 23 September 2020. The hearing included a site view of the Land (together with the parties). For the reasons that follow, the correct and preferable decision is to allow the application for review subject to the imposition of conditions.
Nature of the review
In its review jurisdiction, the Tribunal is required to produce the correct and preferable decision: s 27(2) of the SAT Act. The review hearing is a hearing de novo: s 27(1) of the SAT Act.
Background facts
The Land:
(a)is on the western side of Lakefarm Retreat;
(b)forms part of a 13 lot subdivision which all front Lakefarm Retreat (where the average size of the lots is 4 hectares); and
(c)includes a (461.2m2) dwelling, a shed (210.4m2) together with mature trees of varying sizes.
The Proposed Development comprises:
(a)two freestanding hall buildings (each with an approximate area of 300m2);
(b)a freestanding amenities building with an approximate area of 126.21m2 (and which includes two storage rooms, each with an area of 9.8m2);
(c)a horizontal separation between each of the halls and the amenities of 8.6 metres;
(d)a horizontal separation distance between the two halls of approximately 26.5 metres (with the amenities building lying between the two halls);
(e)50 car parking bays;
(f)a roofed courtyard; and
(g)a tea preparation area of 30m2;
(h)an asphalt access road between Lakefarm Retreat and the carpark;
(i)conversion of the existing dwelling to be used as a 'caretaker's dwelling'. The caretaker's dwelling is 80 metres from the proposed halls; and
(j)the retention of the shed.
The Association intends to utilise the Proposed Development in the following manner:
Weekly Activities
| Frequency | No. of Attendees | Duration | Time | Event |
| Monday | Approx. 5-8 | 1hr | 12.00pm1.00pm | Admin. Duties |
| Tuesday | Approx. 10-15 | 1.5 hrs | 7.30pm 9.00pm | Youth group |
| Wednesday | Approx. 10-15 | 1.5 hrs | 7.30pm 9.00pm | Women's group |
| Thursday | Approx. 20-25 | 2 hrs | 7.00pm 9.00pm | Lectures, Talks & Discussions |
| Friday | Approx. 5-8 | 1 hr | 12.00pm1.00pm | Admin. Duties |
| Saturday | Approx. 10 | 1 hr | 8.00pm 9.00pm | Committee meeting |
| Sunday | Approx. 20-25 | 2 hrs | 10.00am12.00pm | Language classes (Arabic and English) |
Yearly Activities
| Frequency | No. of Attendees | Duration | Time | Event |
| Ramadan (30 consecutive days) | Approx. 40-50 | 1.5hr | 7.30pm-9.00pm | Social gathering |
| Ashora'a (10 consecutive days) | Approx. 40-50 | 1.5 hrs 2hrs | 7.30pm 9.00pm (9 days) 10.00am2.00pm (last day) | Lectures & Talks |
| Eid Ramadan | Approx. 40-50 | 2hrs | 8.00am-10.00am | Social gathering |
| Eid a\-Adha | Approx. 40-50 | 2hrs | 8.00am-10.00am | Social gathering |
| Association AGM | Approx. 50 | 2hr | 7.00am-9.00pm | Annual Reports & Elections |
Applicable planning framework
Planning schemes
The Land is zoned:
(a)'Rural water protection' under the Metropolitan Region Scheme (MRS); and
(b)'General rural' under the City of Swan Local Planning Scheme No 17 (LPS 17).
The objectives of the 'General rural' zone in LPS 17 are as follows:
(a)facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;
(b)provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;
(c)ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;
(d)ensure that development and land management are sustainable with reference to the capability of land and the natural resource values.
The applicable principles for the interpretation of planning schemes are well-known and settled. In this regard, I reiterate and adopt my analysis set out at [13] to [15] of Ursula Frayne Catholic College and Town of Victoria Park.[1]
State planning policies
[1] Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76.
As stated, the Land is within the policy area established by SPP 2.2. SPP 2.2 was published in the Government Gazette on 5 August 2005. SPP 2.2 has been prepared in recognition of the fact that a large portion of Perth's population lives over groundwater resources, including the Gnangara groundwater mound.
The 'main purpose' of SPP 2.2 is 'to prevent, control or manage development and land use changes in the policy area that are likely to cause detrimental effects to the groundwater resource'.[2]
[2] SPP 2.2, cl 2.
The objectives of SPP 2.2 include:
4.1Ensure that all land use changes in the policy area are compatible with the long-term protection and management of groundwater quality and quantity for public drinking water supply, in accordance with priority source protection area classification objectives;
4.2Protect groundwater quality and quantity in order to maintain the dependent ecosystems, ecological values and integrity of wetlands and native vegetation, in accordance with recognised conservation values; and
4.3Protect and/or enhance the quality and quantity of groundwater, in accordance with accepted water quality guidelines and standards for the following uses
•domestic human use
•industry
•agriculture
•recreation and aesthetics.
Clause 2.1 of SPP 2.2 divides the policy area into three priority categories.
•Priority 1 source protection areas are defined and managed to ensure there is no degradation of the water resource in these areas. This is the highest level of protection for the water source and normally will apply to land owned by the state, and is characterised by lowintensity and low-risk land use, such as forestry. Protection of the public water supply outweighs virtually all other considerations in respect to the use of this land. Priority 1 source protection areas are managed in accordance with the principle of risk avoidance.
•Priority 2 source protection areas are defined to ensure that there is no increased risk of pollution to the water source. These areas are declared over land where low-risk development already exists. Protection of public water supply sources is a high priority in these areas. Priority 2 areas are managed in accordance with the principle of risk minimisation and conditional development is allowed.
•Priority 3 source protection areas are defined to manage the risk of pollution to the water source. These areas are declared over land where water supply sources need to co-exist with other land uses such as residential, commercial and light industrial developments. However, there are some restrictions on potentially high polluting uses. Protection of priority 3 areas is otherwise achieved through management guidelines for land use activities. If the water source does become contaminated then water may need to be treated or an alternative water source found.
Priority 1 areas comprise larger land holdings and Crown land. Policy 1 areas are those areas where there is to be no degradation of the water resource. This is the highest level of protection.
Priority 3 areas are found at the south-western and south-eastern fringes of the SPP 2.2 policy area. Priority 3 include suburbs such as Ellenbrook, Alexander Heights and Ballajura.
The Land (and the Lakefarm Retreat subdivision) are within the Priority 2 area. Priority 2 areas are to ensure that there is no increased risk of pollution. The protection of public water supply sources are a high priority in these areas and are managed in accordance with the principle of risk minimisation with conditional development being allowed.
SPP 2.2 includes Appendix 1 which is a land use table setting out land use compatibility guidelines in public drinking water source areas.
Land use Compatibility guideline Caretaker's dwelling Compatible with conditions Club Premises
- sporting or recreation clubs
- health centres
Compatible with conditions
Incompatible
Community Purpose
- Community Halls
Compatible with condition (Note 2)
Educational establishment
- community education centres, scientific research institution
- primary/secondary schools, tertiary education facilities
Compatible with condition (Note 2)
Incompatible
Funeral parlour Incompatible Medical centre Incompatible Place of worship Incompatible Reception centre Incompatible
Note 2 to Appendix 1 states:
The land use is normally incompatible, but may be conditionally approved where this facility is consistent with approved State and local government planning strategies or schemes.
SPP 2.2 also includes the following note:
… Land Use Table 1 may be subject to change. As more up-to-date research on land use impacts and best management practice is undertaken, the table may be amended. More information about recommended best management practices is available in Environmental Management Guidelines and Water Quality Protection Notes for some of the listed land uses.
The most up-to-date table is available from the DOE internet site: … under Guidelines, Land Use Compatibility in public drinking water source areas, or advice can be sought from the DoE and the WAPC.
The State Government agency that is currently responsible for public drinking water areas is the Department of Water and Environmental Regulation (DWER) which has published Water Quality Protection Notes, including Water Quality Protection Note 25: Land use compatibility in public drinking water source areas (April 2016) (Note 25).
Note 25 'supports' planning instruments such as SPP 2.2. Note 25 was advertised in 2015 and includes Table 2 which sets out the 'Compatibility of land uses and activities for the protection of water quality within public drinking water source areas'. SPP 2.2 and Note 25 will be referenced in some detail throughout these reasons.
Funeral parlour Incompatible Office Incompatible Education establishment
- Community education centre
- Scientific research institution
- primary school
- secondary school
- tertiary education facility
- research/scientific study (transient) (r)
Incompatible
Incompatible
Incompatible
Incompatible
Incompatible
Compatible with conditionsConsulting rooms Incompatible Medical centre Incompatible Club premises
- health, fitness or leisure centre
- sporting or recreation club rooms
Incompatible
Incompatible*
Community purpose
- community hall
Incompatible
Caretaker's dwelling Compatible with conditions Place of worship Incompatible
The asterisk (*) in Table 2 is explained as follows:
*This land use is incompatible unless Special circumstances (see section on page 8) apply. Subject to confirmation of these special circumstances, this land use may be considered to be compatible with conditions if it is directly associated with a primary land use that is compatible with conditions or acceptable with the applicable priority area (e.g. a store to sell commercially produced plants and fruit grown on the same site in a P2 area would be considered compatible with conditions, but a store on its own would be considered incompatible). In these cases, we expect the operator to use best management practices to reduce water quality risks. The types of practices we would expect are discussed in documents listed in the guidance column.
(Original emphasis)
Note 25 states the following in relation to 'special circumstances':
Variation of recommendations
The department's recommendations may, on occasion, vary from that provided in tables 1 and 2 as a result of more detailed site-specific information or special circumstances such as a reduction in the present contamination risk. This means we may support a land use that is normally incompatible, or oppose a land use that is usually acceptable or compatible with conditions.
Incompatible land uses receiving planning approval should:
•be consistent with a region or local planning scheme or a local planning strategy that has been endorsed by the Western Australian Planning Commission
•be in the best interest of the community
•pose no unacceptable contamination risk to water quality
The Department of Water should have early involvement in these proposals and decisions to maximise the opportunity to protect the drinking water source[.]
Pursuant to s 241(1) of the Planning and Development Act 2005 (WA) (PD Act), I am required to give 'due regard' to any 'relevant planning consideration', including any State planning policy which may affect the subject matter of the application.
Referral comments
The Proposed Development was referred to DWER for comment. DWER provided comments on the Proposed Development to the City on four separate occasions: 30 May 2017, 2 August 2017, 18 January 2019 and 21 January 2020.
DWER does not support the Proposed Development. DWER is concerned that the Proposed Development constitutes an intensification of land use which is inappropriate in a Priority 2 area. DWER considers that the Proposed Development constitutes an unacceptable risk of contamination to groundwater. This is on account of the increase in potential sources of contamination resulting from cars, wastewater and infrastructure.
Regardless of whether or not best practice management practices are applied, including connection to reticulated sewer, stormwater management and reductions in the number of people attending, DWER considers that the Proposed Development will still pose an increased risk to the water resource. This is essentially because the proposed mitigation measures may fail.
Issues
The ultimate issue for me is whether, in the exercise of planning discretion, the Proposed Development warrants approval. The respondent submits, and I agree, that the following issues arise for consideration:
1.The correct classification of the Proposed Development for the purposes of LPS 17;
2.Whether the Proposed Development is acceptable having regard to the potential impacts on water quality? and
3.Whether the Proposed Development is consistent with orderly and proper planning?
Respondent's submissions
The actual issue in contest in the proceeding is relatively narrow. The respondent's statement of issues, facts and contentions outlines, in effect, that the Proposed Development is contrary to sound protection of drinking water resources.[3] This case very much focuses on issues of drinking water quality.
[3] Respondent's Statement of Issues, Facts and Contentions (Exhibit 1) para 68.
In his closing submissions, Mr Wittkuhn, counsel for the City, outlined that:[4]
WITTKUHN, MR: Well, I repeat that, as mentioned in the opening, it's important that the integrity of the P2 area as a P2 area is maintained and that it doesn't become either, piecemeal or by degrees, a, sort of, a de facto P3 area. It plays a role and it plays a role which is different from a P3 area and it has a higher level of protection in its objectives than a P3 area.
Applicant's submissions
[4] ts 94, 23 September 2020.
The applicant's case is, in effect, that the Proposed Development warrants approval as a 'club premises'. The applicant further outlines that the Proposed Development is acceptable from a public drinking water quality perspective and warrants approval.
Evidence
I heard from four witnesses. Mr Stephen Watson (Section Manager DWER) and Mr Rohan Sim (Planning Officer, City of Swan) gave evidence for the respondent. Mr Peter Alebakis (Director, Urbanise WA) and Ms Rebecca Epworth (Director, Coterra Environment) gave evidence for the applicant.
I also received a submission from Urbanista Town Planning on behalf of the other residents of Lakefarm Retreat. This submission was received pursuant to s 242 of the PD Act.
Summary of the witness evidence
Mr Rohan Sim
Mr Rohan Sim considers there is inconsistencies between the initial application as put forward by the applicant and the revised proposal that is the subject of these proceedings. For example, Mr Sim refers to the initial cover letter that accompanied the application which provided that the Land will be 'as a place of worship, meetings and gathering place for religious purposes'.[5]
[5] Witness statement of Rohan Sim (Exhibit 6) at para 24.
Mr Sim raises concerns about the potential impacts of the Proposed Development on water quality protection. He is particularly concerned about the increase in effluent volumes and also hydrocarbon runoff from vehicles.
Mr Sim considers that the Proposed Development will result in an increased risk to the Gnangara groundwater drinking source.[6] Mr Sim also considers that there is a risk to sewerage infrastructure from tree roots and human error, as well as potential petrol or oil spills from motor vehicles.[7]
[6] Witness statement of Rohan Sim (Exhibit 6) at para 46.
[7] Witness statement of Rohan Sim (Exhibit 6) at para 46.
On the question of orderly and proper planning, which arises by reason of cl 67(b) of the 'deemed provisions' in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions), Mr Sim refers to fact that the Land is identified as forming part of a 'Planning Investigation area' in the North-East Subregional Planning Framework (NESPF) made pursuant to Perth and Peel @ 3.5 million planning framework. One of the considerations for the Planning Investigation area is:
[I]mpacts, risks and management associated with Gnangara ground water resources[.]
Mr Sim is of the view that the Planning Investigation area is a work in progress and is, at this time, far too remote and uncertain so as to properly inform the exercise of discretion.
Mr Sim considers that the Proposed Development is not consistent with orderly and proper planning because:
(a)the land use 'place of worship' is incompatible with the Priority 2 source protection identification of the Land under SPP 2.2;
(b)a 'place of worship' is also incompatible with Note 25;
(c)the Planning Investigation area is, at this time, too remote to inform the exercise of discretion; and
(d)the Proposed Development presents an unacceptable risk of groundwater pollution and contamination.
Mr Stephen Watson
Mr Watson provided advice to the City on the Proposed Development during the consultation process. Mr Watson observes that the protection of Perth's drinking water sources has been addressed via Parliamentary committees in 1994, 2000 and 2010.[8]
[8] Witness statement of Steven Watson (Exhibit 7) at para 10.
Mr Watson opines that land use intensification has impacts on water quality over the longer term. Mr Watson observes that:[9]
… This inter-generational impact is significant to consider in the assessment of planning protocols today to ensure the public health protection we benefit from now is available in the future[.]
[9] Witness statement of Steven Watson (Exhibit 7) at para 11.
Mr Watson observes that a single dwelling on a 2 hectare lot is 'much less risky' than that same lot subdivided into 500m2 lots. This is due to 'more chemicals, cars etc'.[10] Mr Watson observes that the State may determine that land use intensification may occur within a public drinking water supply area (PDWSA). In this instance, the Land is part of such an assessment (being the 'Planning Investigation area') which is being undertaken by the Western Australian Planning Commission. As noted by Mr Sim, the first consideration identified for the NorthEast Sub-Region, North Ballajura is:
Impacts, risks and management associated with Gnangara ground water resources[.]
[10] Witness statement of Steven Watson (Exhibit 7) at para 11.
However, Mr Watson observes that while the Land may have urban potential, at this time, the planning investigation process is not complete.[11]
[11] Witness statement of Steven Watson (Exhibit 7) at para 12.
Mr Watson observes that the Land is within a Priority 2 area. The assessment, therefore, needs to determine whether the proposed land use will increase the risk of pollution. To assist in that determination, land use compatibility tables have been developed, including within SPP 2.2 and also Note 25.
Mr Watson outlines that the assessment of risks in PDWSAs is not the same as risk assessments outside PDWSAs.[12] Within PDWSAs, the approach of DWER is to ensure that land use change and development is compatible with the long-term use of the groundwater for public consumption.[13]
[12] Witness statement of Steven Watson (Exhibit 7) at para 15.
[13] Witness statement of Steven Watson (Exhibit 7) at para 15.
Pursuant to Note 25, 'no increased risk of pollution' is the expected outcome to be achieved. If what is identified as an 'incompatible' land use is proposed, DWER will not support it unless it can be shown to reduce the risks of the current land use.[14]
[14] Witness statement of Steven Watson (Exhibit 7) at para 15.
In the context of the Proposed Development, Mr Watson outlines that the various elements together 'substantially add to the number of people, buildings, amenities, car parking spaces and access road' compared to the present situation. Mr Watson considers that the Proposed Development will result in an increase to the 'maximum risk' and the 'residual risk' of water quality.[15] Mr Watson is also concerned that approval to the Proposed Development may set a precedent for intensification of other surrounding lots.
[15] Witness statement of Steven Watson (Exhibit 7) at para 18.
On the question of deep sewerage, Mr Watson notes that Note 25 refers to deep sewerage in Priority 3 areas, but includes no equivalent discussion for Priority 2 areas. Mr Watson considers 'there is no policy support for the idea that establishment of a sewer connection should be regarded as a neutralising the risk of contamination through human waste'. Mr Watson also considers that connection to sewer is not an absolute mitigation to wastewater concerns and should not be viewed as solving the water quality risks of the Proposed Development. This is because the sewerage system may, at some point, fail.[16]
[16] Witness statement of Steven Watson (Exhibit 7) at para 21.
Noting that the Proposed Development may result in an additional 50 people being on the Land, Mr Watson is of the view that, at best, the 'human waste risk element is unchanged (not improved) when balancing these competing factors'.[17] Mr Watson is of the view that, in terms of wastewater contamination risks, the existing land use (single house) is lower than the risks associated with the Proposed Development. However, he does agree that the inclusion of a sewer connection is a better outcome than a development without such a connection.[18]
[17] Witness statement of Steven Watson (Exhibit 7) at para 21.
[18] Witness statement of Steven Watson (Exhibit 7) at para 22.
Mr Watson says he cannot discern any significant difference between the impacts that arise from the Proposed Development in the context of whether the Proposed Development is classified as either 'community purpose' or a 'place of worship'. This is because they both involve the same activities and therefore share the same risk profile in a PDWSA.
Mr Peter Alebakis
Mr Alebakis' evidence relates to the engineering issues that arise in the context of the Proposed Development.[19] Mr Alebakis has designed the following for the Proposed Development:
(a)the access road and carpark configuration;
(b)stormwater drainage infrastructure (which will involve capture and discharged into a bio-filtration area for a first flush)
(c)construction of a new Water Corporation sewer main to service the new facilities and existing dwelling, where the dwelling will be redirected to discharge into the Water Corporation network; and
(d)the decommissioning of the septic tank and leach drains associated with the existing dwelling.
[19] Witness statement of Peter Alebakis (Exhibit 9).
Mr Alebakis' opinion is that by implementing wastewater and drainage management across the Land, the Proposed Development is considered to be an overall improvement and not an increased risk of contamination from the Proposed Development.
In terms of stormwater management, Mr Alebakis outlines that the due to the proposed roof and asphalt area, the Proposed Development will produce a higher runoff flow than the existing situation. Mr Alebakis outlines that the stormwater strategy for the Proposed Development comprises:
(a)major storm (one in 100 years) stormwater runoff shall be retained on the Land;
(b)runoff from the community hall rook will be channelled into localised side swales and infiltrated through clean sand into an existing drainage basin on the Land;
(c)asphalt runoff will be via drainage pit collection piped into open drainage swales with a first flush being treated within the drainage swale drain located to the northern side of the car park. Open swales to contain plants to reeds for the treatment of hydrocarbons that runoff from the proposed carpark;
(d)cut off drains. Swale drains on the southwestern side of the community hall shall be used as a cut off drain and also a point of discharge for roof runoff; and
(e)swale drains to have one in six batters and be accessible for maintenance purposes and be landscaped to prevent erosion.
Mr Alebakis' witness statement annexes a Stormwater Management Plan for the Proposed Development.
Ms Rebecca Epworth
Ms Epworth has expertise in urban water management, water quality treatment and sustainable urban design and hydrology.[20] Ms Epworth was engaged in May 2020 to assess the Proposed Development in the context of the PDWSA issues. She authored a letter report titled 'Development in a P2 PDWSA' for the benefit of the Association. The report addressed the following issues:
(a)land use classification issues;
(b)potential impact to water quality arising from the Proposed Development;
(c)car parking issues in Priority 2 areas; and
(d)bio-filtration swale design and water quality treatment.
[20] Witness statement of Rebecca Epworth (Exhibit 8).
Ms Epworth advises that her assessments have all been based on the Proposed Development being classified as 'club premises' under LPS 17.
In terms of water policy, Ms Epworth notes SPP 2.2 and the fact that Note 25 is a support or supplement for SPP 2.2. Ms Epworth notes that 'club premises' is a land use that is 'compatible with conditions' under SPP 2.2. Under Note 25 'club premises' is identified as being 'incompatible*'. The '*' means that the use is incompatible unless 'special circumstances' apply.
As set out at [28], Note 25 sets out that 'special circumstances' include 'a reduction in the present contamination risk'. SPP 2.2 defines 'contamination' as 'the occurrence of substances in the soil or groundwater at concentrations above background level which pose, or have the potential to pose, an unacceptable risk to human health or the environment'.
Ms Epworth also observes that Note 25:
(a)suggests, in the context of a proposed carpark, to 'refer to [the] specific land use';
(b)classifies stormwater infrastructure as 'compatible with conditions'; and
(c)classifies 'gravity sewer' as 'incompatible'.
Ms Epworth considers that the stormwater treatment infrastructure associated with the Proposed Development are consistent with the Better Urban Water Management Guidelines (Western Australian Planning Commission, 2008) and the Stormwater Management Manual (Department of Water, 2004-2007).[21]
[21] Witness statement of Rebecca Epworth (Exhibit 8) at para 4.3.
Ms Epworth, together with Mr Alebakis, proposes a biofiltration system for the treatment of the carpark stormwater which will consist of a combination of high Phosphorus Retention Index (PRI) soils and nutrient stripping plants for water quality treatment. The intent of the biofiltration system is that it will treat the first flush arising from storm events (when rainwater will run off from the car park). The 'first flush' is considered to be the first 15 millimetres of rainwater or frequent rain events.
Ms Epworth outlines that an 'appropriate mix of high performance plant species' will be selected from those identified in the Vegetation Guidelines for Stormwater Biofilters in the South-West of Western Australia. The vegetation will 'target' nutrient removal the effect of which is to sediments and micro-pollutants though filtration. She further outlines that to ensure that adequate treatment of stormwater is achieved, amendments will be made to the soil profile layers beneath the swale. The aim of this treatment is to increase the PRI to a minimum target of 10. The soil amendment layer will be a minimum of 0.3 metres thick.
To assess whether the bio-filtration swale operates effectively, Ms Epworth assessed the clearance to groundwater. Her investigations concluded that the base level of the swale will need to be set at a minimum of 36.9 metres Australian Height Datum to achieve the necessary separation distance of 0.3 metres to the maximum groundwater level. In order to achieve adequate separation, some fill will be required for the proposed carpark and buildings.
In terms of the assessment of water quality risk in the context of the proposed change in use, Ms Epworth's assessment focused on managing the risks arising from the carpark stormwater in the context of the proposed treatment design. Ms Epworth did not consider that closer assessment of the risks associated with the 'club house' premises was warranted given that wastewater will be removed from the Land via connection to deep sewer. Ms Epworth also observes that no commercial kitchen facilities are proposed (meaning there are no external oil or grease traps) and no irrigation of gardens is proposed. Ms Epworth considers that the water quality risks arising from the 'club house' premises are 'marginal'.[22]
[22] Witness statement of Rebecca Epworth (Exhibit 8) at para 6.1.
Ms Epworth did not conduct an assessment of the water quality risks arising from the gravity sewer alone as the relevant assessment, in the context of SPP 2.2, is a comparative assessment between the existing land use (a single dwelling using septic tanks) and a development that is connected to the Water Corporation mains sewer.
Ms Epworth's view is that septic tanks provide the most 'basic treatment of wastewater' out of the options available. Ms Epworth therefore considers that, the removal of a septic tank 'is therefore likely to reduce the contaminant export to groundwater'. This is especially the case on the Land given the groundwater is so close to the surface (within 1 metre). Given the proximity of the current groundwater levels to the surface, Ms Epworth queries whether the existing leach drains associated with the septic tank may not be achieving the desired separation distances for new systems specified in (Sch 2 to) the Government Sewerage Policy.
Ms Epworth's opinion on the 'main pollution parameters of concern' are as follows:[23]
[23] Witness statement of Rebecca Epworth (Exhibit 8) at para 6.2.
(a)in terms of microbial contamination (to drinking water):
(i)the removal of the septic tank means that the overall risk of is expected to reduce; and
(ii)carparks do not usually pose a risk of such contamination.
(b)nutrient loading is expected to reduce as a result of the Proposed Development as a result of:
(i)the removal of the septic tank;
(ii)carparks are expected to have little nutrient loadings. Any nutrients (which may include heavy metals, tubidity and petrol/oil products) can be removed by a well-designed biofiltration area can typically remove any nutrients that are present at a rate of more than 50-65%; and
(iii)the landscaping and garden areas will be small and will only include native vegetation (without the need for fertiliser application).
(c)sediments (turbidity). The sediment loading is expected to remain unchanged/be slightly improved as a result of:
(i)the removal of the septic tanks. Septic tank effluent contains sediments so removing wastewater from the Land will reduce the potential export of sediments; and
(ii)while turbidity is a risk factor for car parks, wastewater will be treated prior to infiltration to groundwater. However, a well-designed biofiltration area can typically remove more than 95% of sediment.
(d)heavy metals and hydrocarbons are a parameter of concern for car park runoff. However, a well-designed bio-filtration area can remove more than 90-99% of these elements.
On the basis that the change in wastewater arrangements will be an improvement on the existing arrangements, the focus of the engineering arrangements has been on managing the water quality risks arising from the carpark and stormwater. Ms Epworth notes that there are other carparks within Priority 2 areas which range from six to 500 car bays.
Joint statement of the experts
All of the experts in this matter conferred and together prepared a joint statement.[24] The experts identified and discussed ten issues.
[24] Joint statement of the expert witnesses (Exhibit 10).
| Issue No. | Issue | Position of the experts |
| 1 | The proposed mitigation measures will address the increased risks of water quality contamination from this proposal compared to the existing land use. | Experts disagreed. Respondent's experts 'not convinced' the mitigation measures result in no increased risk in the Priority 2 area. Concern over cumulative impacts. |
| 2 | The proposed wastewater system will address the increased risks of water quality contamination from this proposal compared to the existing land use. | Experts disagreed. Mr Watson is concerned about the wastewater system failing. |
| 3 | The proposed biofiltration and soil amendment system will address the increased risks of water quality contamination from this proposal compared to the existing land use. | Experts disagreed. Respondent's experts did not agree because the system requires monitoring and reporting issues. Concern over contamination. Mr Watson advised that if approved, biofiltration and soil amendment system proposed was necessary. |
| 4 | In the land use tables 'wastewater' and 'carpark' land uses are able to be 'compatible with conditions' or 'acceptable' in Priority 2 areas, addressing these two key issues should result in the proposal being 'compatible with conditions' or 'acceptable'. | Experts disagreed. Respondent's experts suggest proposal is to be considered as a whole. |
| 5 | Provided it did not require the removal of native vegetation, for the existing land use the land owner can already plant and fertilise their garden area with non-native species without approval. By approving the proposed land use it introduces at least a commitment/mechanism to limit the garden area in size, species type and application of nutrients. | All experts agreed. |
| 6 | Are maximum and residual risks appropriate to be considered in the assessment of the current and proposed land uses? | All experts agreed. |
| 7 | Cumulative risk and undesirable precedent are appropriate matters to be considered for this proposal. | Experts disagreed. Respondent's experts commented that these matters are important to good orderly planning outcomes in public drinking water source areas. |
| 8 | Is the proposed development consistent with the better urban water management guideline and stormwater manual and how was the location of this proposal in a public drinking water source area considered? | All experts agreed. |
| 9 | Is the land use table in SPP 2.2 more or less appropriate to apply than water quality protection Note 25? | Experts disagreed as to which instrument was more relevant in the exercise of discretion. |
| 10 | 'Place of worship' and 'community hall' are essentially the same insofar as water quality contamination risks are concerned. | All experts agreed. |
| 11 | Is it an agreed principle that for the proposed proposal there should be no change, or an improvement, in water quality contamination risk levels? | All experts agreed. |
Section 242 submission
The Tribunal granted leave for the residents of Lakefarm Retreat to make a submission pursuant to s 242 of the PD Act. On 9 September 2020, Urbanista Town Planning (Urbanista) made a submission on behalf of these residents.[25]
[25] Submission by Urbanista Town Planning pursuant to s 242 of the PD Act (Exhibit 12).
Urbanista outlines that the Proposed Development should be classified as a 'place of worship'. By reference to the expert evidence, Urbanista also outlines that:[26]
While we accept that [the mitigation measures] proposed by the [applicant] may address the increased risks of contamination to the drinking water, it is evident that this cannot be guaranteed and that any increased activity on the subject site will result in an increased risk to the contamination of the drinking water.
[26] Section 242 submission at para 26.
Urbanista further outlines that the Proposed Development is 'not consistent with orderly and proper planning' on the basis that a 'place of worship' or a 'community hall' is 'incompatible' with the applicable planning framework. Furthermore, the Proposed Development is an intensification of the use of the Land and presents as an unacceptable risk of groundwater pollution and contamination.[27]
Issue 1: the question of land use classification
[27] Section 242 para 29.
There is no dispute about the activities associated with the Proposed Development. Those (new) activities involve people attending and gathering on the Land. The town planning consequences of that are that physical premises are needed, as well as a carpark and amenities, for the people who are in attendance. Whatever classification is applied to these activities for the purposes of town planning assessment, the proposed activities associated with the Proposed Development are not in contest.
On the question of land use classification, based on the revised application that has been put forward, there is no basis for the Proposed Development to be classified as a 'place of worship' for the purposes of LPS 17. This is because, based on the materials before me, no 'religious activities' are proposed. Furthermore, there is no evidence that what is proposed to be constructed is a 'church, chapel, mosque, synagogue or temple' (or similar).
It seems to me that what is proposed is to establish 'premises used by a legally constituted club or association or other body of persons united by a common interest'. In this instance, the 'common interest' of the members is both their Shia faith (as well as being Iraqi or of Iraqi descent). The activities will involve meetings and social gatherings as well as activities for children and youths. To my mind, the Proposed Development is therefore a 'club premises' for the purposes of LPS 17.
While I acknowledge that the initial application did propose a 'place of worship', that proposal has been modified. Mr AL Al-Boraich, who appeared for the Association, commented that what is proposed is in the same nature as a 'Macedonian Club' or a 'Greek Club'.[28] Mr AL Al-Boraich further submitted that the reason why the original application was not for a 'club' was because, in Iraqi culture, a 'club' really means a 'night club' and that is not what is proposed.[29] The use of the word 'prayer' was misinterpreted.[30]
[28] ts 14, 23 September 2020.
[29] ts 13, 23 September 2020.
[30] ts 14, 23 September 2020.
At this point I would observe that even if the proposal remained as a 'place of worship', the activities that are proposed remain the same. Certainly from the materials before me, there is no concern that there would be any different town planning issues that would arise if a place of worship were proposed. Certainly, there is no evidence that noise (in the form of singing or other religious observances) would be an issue.
However, the applicant expressly disavows that what is a proposed is a 'place of worship'[31] and I can only deal with the submission on its terms. If it turns out that what is proposed is actually for 'religious activities' then development approval is required for such activities and the City also has a range of enforcement and compliance options.
[31] ts 14, 23 September 2020.
I should also add that because there is a social aspect to the activities, the Proposed Development is not an 'educational establishment' for the purposes of LPS 17. Likewise, as was the case in Dao Ji Association and City of Gosnells[32], because there is no overarching community benefit that is served, the Proposed Development is not a properly classified as 'community purpose' for the purposed of LPS 17.
[32] Dao Ji Association and City of Gosnells [2020] WASAT 10.
It follows that the Proposed Development is a 'club premises' for the purposes of LPS 17.
Issue 2: whether the Proposed Development is acceptable from a water quality perspective
To my mind, this is the central issue in this proceeding. That is, in my view, this case ultimately boils down to whether the Proposed Development is acceptable having regard to public drinking water issues. I note here that the likely effect of a proposed development on the natural environment or water resources is a relevant consideration pursuant to cl 67(o) of the deemed provisions.
As I will explain, having regard to the evidence and the applicable planning framework, which I discuss below, I see no amenity or other planning issues arising from the Proposed Development that would warrant refusal.
While SPP 2.2 and Note 25 address the question of land use compatibility with the groundwater reserve, ultimately these are policy instruments that inform and guide the exercise of planning discretion. They do not dictate it.[33]
[33] Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68.
Having regard to the Proposed Development, if I find that the engineering issues relating to wastewater can be adequately addressed, such that the risks are 'minimised', then I consider that conditional approval should be granted.
Some general comments on the applicable planning framework
In order to consider the suitability of the Proposed Development in the context of water quality issues, I first need to give detailed consideration to the planning framework.
The starting point for that analysis is LPS 17 which informs the range of uses that are permitted, discretionary and prohibited on the Land. As stated, the Land is zoned 'General rural' in LPS 17. The objectives of the 'General rural' zone include facilitating the use and development of land for a range of productive rural activities as well providing for a limited range of support services to meet the needs of the rural communities. Rural character is to be preserved and sustainable land management practices are mandated.[34]
[34] Clause 4.2.17 of LPS 17.
I observe that there is nothing in these zoning objectives which expressly addresses water quality (aside from the general reference to sustainable land management practices). Certainly there is nothing that makes managing water quality the primary or overarching concern in the General rural zone of LPS 17.
While the Land is zoned 'Rural – Water Protection' in the MRS, the MRS text includes no provision which outlines the kind or range of land uses that may be contemplated in the zone. That level of detail is left for LPS 17.
Along with LPS 17, SPP 2.2 is also highly relevant as it is the primary instrument dealing with water quality issues (and which I accept needs to now be read in the context of Note 25).
In terms of managing water quality issues, I note that the Land is within a Priority 2 area. In Priority 2 areas, the policy lodestar is to minimise risk. This is in contrast to Priority 1 areas where the policy aim is for risk avoidance. I have set out the respective principles for each priority area earlier at [18].
Noting that the water quality framework seeks to 'minimise' risks in Priority 2 areas, I must say that the planning framework, as a whole, does not appear to be entirely consistent in terms of the way it seeks to manage (or minimise) water quality risks.
This is because, for example, the land use 'rural pursuit' is a 'permitted' use in the General rural zone. Pursuant to LPS 17, 'rural pursuit' means:
… any premises used for
(a)the rearing or agistment of animals;
(b)the stabling, agistment or training of horses;
(c)the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; or
(d)the sale of produce grown solely on the lot,
but does not include agriculture – extensive or agriculture – intensive[.]
Likewise, uses such as 'agriculture – extensive' and 'agriculture – intensive' are also 'permitted' uses in the General rural Zone. I note here that the definition of 'agriculture – intensive' expressly includes 'turf farms'.
Pursuant to cl 61(2)(b) of the deemed provisions, which form part of LPS 17, a permitted use that includes no 'works component' does not require development approval.
The effect of that is that agricultural uses, including intensive agricultural uses of a commercial or industrial scale, do not require development approval in the General rural zone (where no 'works component' is involved). This is so even though under SPP 2.2 a use such as 'orchards' is identified as being 'compatible with conditions' and a 'turf farm' is identified as being 'incompatible' in a Priority 2 area. Likewise a 'turf farm' is identified as 'incompatible' in Priority 2 areas in Note 25.
It is not surprising that a range of rural activities are permitted in a General rural zone. The point being that LPS 17 simply treats the Land as general rural land and, in some respects as I have noted above, the zoning table is at (significant) variance from the land use tables included in both SPP 2.2 and Note 25. In my view, it cannot be said that the planning framework, read as a whole, gives absolute priority to water quality issues in Priority 2 areas in all instances. I therefore consider that water quality issues, while no doubt important, are to be weighed and balanced in the exercise of discretion.
Indeed, the planning framework read as a whole, reinforces to me that in Priority 2 areas the focus is on risk minimisation in relation to water quality issues. The planning framework does not mandate risk avoidance in these Priority 2 areas. To me, the difference between the need to minimise risk, rather than to avoid risk, is the critical point on which this case turns.
However, before I proceed further, it is appropriate at this point that I refer to the recent Tribunal decision in WA Timber Supplies Pty Ltd and City of Swan[35] where the Tribunal, at [193], observed by reference to decisions such as Fryer and City of Subiaco[36] at [103] and Greenelm Pty Ltd and City of Swan[37] at [57], that it 'should, in relation to matters of public health and safety, adopt a precautionary approach'.
[35] WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153.
[36] Fryer and City of Subiaco [2006] WASAT 199.
[37] Greenelm Pty Ltd and City of Swan [2010] WASAT 142; (2010) 74 SR (WA) 84.
Issues of public drinking water quality are plainly matters of public health and safety such as to warrant a precautionary approach.
In terms of the compatibility of the Proposed Development with SPP 2.2 and Note 25, under SPP 2.2 'club premises' (for recreation purposes) is noted as being 'compatible with conditions' in Priority 2 areas. SPP 2.2 and Note 25 also identify infrastructure items that may be proposed in PDWSAs.
In terms of wastewater infrastructure SPP 2.2 outlines that a 'pressurised mains' is also identified as being 'compatible with conditions' in Priority 2 areas.
As I outlined at [28], pursuant to Note 25, which is a more recent document than the current iteration of SPP 2.2, 'club premises' (recreation club rooms) are identified as 'incompatible*'. The '*' means 'the land use is incompatible unless Special circumstances … apply'. Special circumstances may arise as a result of 'more detailed sitespecific information or special circumstances such as a reduction in the present contamination risk'.
Note 25 further provides that:
Incompatible land uses receiving planning approval should:
•be consistent with a region or local planning scheme or a local planning strategy that has been endorsed by the Western Australian Planning Commission[;]
•be in the best interest of the community[; and]
•pose no unacceptable contamination risk to water quality[.]
In terms of wastewater infrastructure, Note 25 identifies that a pressurised sewerage system is 'compatible with conditions' in a Priority 2 area.
What kind of sewerage system is proposed?
In terms of wastewater treatment, it is only pressurised sewerage infrastructure that is regarded as being (conditionally) compatible with both SPP 2.2 and Note 25 in a Priority 2 area. A gravity sewer is incompatible.
In this instance, the sewerage infrastructure is proposed to extend for 140 metres to connect to the Water Corporation's sewerage system. If the sewerage system proposed is pressurised, then it may be regarded as being compatible with a Priority 2 area.
In this instance, I accept the evidence of Mr Alebakis that what is proposed is a pressurised sewer even though it works under gravity. His evidence, which was not seriously challenged or contradicted and which I accept, is that, even though it operates on a gravity flow, the pipe system is completely sealed (and glued) and therefore is, in effect, pressurised.[38]
[38] ts 22-23, 23 September 2020.
I therefore regard the proposed sewerage infrastructure as, in effect, being 'pressurised' for the purposes of SPP 2.2 and Note 25.
Does the Proposed Development minimise water quality risks?
In terms of comparing the existing risk profile in relation to wastewater management as against what is proposed, the witnesses gave the following evidence:[39]
[39] ts 41-42, 23 September 2020.
WITTKUHN, MR: Ms Epworth, in terms of the comparison between the current situation where a septic tank is used, and the proposal where a enclosed sewer is used, can I put it to you that on one hand it's true that the sewer system would be a closed system. But on the other hand, there would be a significant increase in the number of people using the site, probably in excess of a tenfold increase. And I don't think anyone is suggesting that gravity sewers are – that sewers are guaranteed, a guaranteed never to rupture.
So if you take into account those two competing considerations. On one hand improvement by way of a closed system but on the other hand, an undeniable increase in the number of people and weigh those two things, isn't the risk to water quality, just having regard to the human effluent component isn't that risk about even between the human effluent component, isn't that risk about even between the current and the proposal?
WITNESS, EPWORTH: The septic tanks – so you have septic tanks and you have 80 years and you have connection to sewerage. Septic tanks are – the recent government sewerage policy, you can't use septic tanks anymore. They are – they're notoriously terrible at treating sewage. They're very basic, they have a sedimentation process. And then they go to leach drains which infiltrates directly to your groundwater. If they're not maintained, which often they aren't, you can have the potential for raw sewerage or sediment in sewage going into the leach drains.
So septic tanks are incredibly flawed. ATU systems are now what's approved by the government for sewerage. It's the only thing can do on an on-site domestic sewerage. So removing septic tanks is a vast improvement. Also, because of the microbial aspect. ATU treat the microbial aspects. So it makes the on-site effluence, it's a lot more safer nowadays but whereas the septic tanks don't. If they're not maintained and they are going straight to the leach trains.
So septic tanks are quite a risk. I do agree that there will be more people on site. They won't be living there. So their usage of water will not be as much as a permanent person living on site. But, yes, there will be an increase in sewerage but it would be removed from the site. And it wouldn't be going to leach strains which is why I made the conclusion that it's an improvement from a microbial aspect.
WITTKUHN, MR: Mr Alebakis?
WITNESS, ALEBAKIS: So when you weigh up the probability of the failure of the pipe compared to removing the septic system as per Rebecca, it's yes, to me it's a massive increase in quality of the system. For a pipe to fail you will need a very some sort of root system where the bulk of the trees are or the pipe would be quite deep for trees to actually get in there. If a tree root was to get in there it would block up and the overflowing, you will see it. So you'll have prewarning.
It won't just sit there and leak for years upon years without even knowing what's going on. If you do have a leak in the system it will be small compared to what's coming out of a septic system. And the only other way you can do it is through mechanical, like, an excavator which is (indistinct) as you're digging which immediately (indistinct) straight away. So when you weigh up having a septic system completely removed and have a gravity system in place you get an idea that it's a completely better system.
WITTKUHN, MR: And Mr Watson. Do you have a comment on this?
WITNESS, WATSON: I don't think there's a significant difference. I still propose that there's a greater risk than the number of people. I think failure of both systems is possible. And the ability to monitor either a septic or a gravity system is limited, both if they fail will leak into the ground. And I think the fewer number of people in a single dwelling versus the more people in the proposed development sort of balances itself off. So sort of include that at best it's an unchanged situation. I would just add that if this proposal was supported I would definitely support and gravity system however as opposed to a duplication of the septic.
In my view, the proposal to include deep sewerage for the Proposed Development does result in an overall reduction in the water quality risk profile for the Land. This is because of the benefits that result from the removal of the existing septic tanks and the proposal to include pressurised sewerage infrastructure. While there will be an increase in the number of people attending the Land, they will be visiting only, and all wastewater that is generated will be removed and not treated onsite.
In terms of the managing the storm and wastewater issues arising from the carpark, I am satisfied that the biofiltration system designed by both Mr Alebakis and Ms Epworth will satisfactorily remove more than 9099% of the contaminants of concern (namely heavy metals, hydrocarbons and turbidity). Although Mr Wittkuhn, quite properly, questioned both Mr Alebakis and Ms Epworth on the likely performance and operation of the biofiltration system[40], I am satisfied that it has been designed appropriately and will operate effectively. The respondent did not provide any expert or other evidence to challenge or contradict the evidence of these two experts.
[40] ts 4357, 23 September 2020.
Mr Watson's evidence related to policy considerations. By his own admission, Mr Watson is not an environmental expert or engineer. Quite properly, he did not seek to contradict any of the engineering or environmental evidence presented by the applicant's experts. However, from a policy management perspective, DWER is concerned about the risk of the deep sewerage or bio-filtration system failing.
Coming to the core of the water quality issue, I am satisfied that the Proposed Development is acceptable from a water quality management perspective. As I have stated, this is not a locality where the policy settings are such that all risk is to be avoided. The Land is not in a Priority 1 area.
The policy settings provide that risk should be minimised. LPS 17 provides that a 'club premises' use is discretionary and may be approved. Both SPP 2.2 and Note 25 provide that 'club premises' is a land use that is 'compatible with conditions' in a Priority 2 area. Note 25 is more cautious and provides that a club premises should only be considered in 'special circumstances' which includes where the proposal results in a reduction to the present contamination risk.
Likewise, SPP 2.2 and Note 25 provide that the presence of a pressurised sewerage system in a Priority 2 area may be acceptable. For completeness, Note 25 does not separately consider carparks. The water quality issues that arise with carparks are to be assessed as part of the assessment of the primary land use.
In terms of the intensity of activities, outside of special events (such as Ramadan, Eid Ramadan and the Association's AGM) the daily patronage of the Proposed Development is fairly modest. Only on Thursdays and Sundays would up to 25 people be in attendance for up to two hours. The rest of the week, the number of attendees are expected to be less than 10. During special events, the numbers are expected to be 40 50 people for a couple of hours per event (although I accept that Ramadan is for 30 consecutive days).
In an overall sense, I consider that the Proposed Development does not involve heavy patronage and attendance. In any event, the Proposed Development involves the provision of deep sewerage to deal with wastewater in circumstances where there is currently a septic tank system.
Drawing all these threads together, I am satisfied that the Proposed Development is consistent with the applicable planning framework. Because it involves the removal of an existing septic tank system to be replaced with pressurised sewerage infrastructure, I am satisfied that the Proposed Development meets the objectives of the Priority 2 areas in that the risks have been minimised. I accept that there are risks arising from the Proposed Development, however I find that these have been minimised and can be adequately managed.
The management of the carpark and stormwater runoff does present risk issues, but again the biofiltration system that is proposed will adequately minimise these risks.
I am therefore satisfied, from a water quality perspective, that the Proposed Development is acceptable. It follows that I do not accept Mr Watson's opinion that the Proposed Development is contrary to water policy. Equally, I do not accept Mr Sim's opinion that the Proposed Development represents an elevated risk to the groundwater drinking source.
Even adopting a precautious approach to water quality, as suggested by a line of Tribunal authorities, I am of the view that the Proposed Development adequately addresses the public drinking water quality issues. In doing so, I reiterate that I accept that there are risks that arise from the Proposed Development. However, I consider that the risks have been minimised and are acceptable.
I should also add here that, even in the context of the precautionary approach, any planning response must be proportionate to the threat posed.[41]
[41] Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 [66].
In my view, the respondent's (and DWER's) approach to this case amounts to, in effect, an attempt to place a moratorium on development no matter what wastewater or other environmental management regimes are proposed. The respondent's case, and Mr Watson's evidence, is essentially that regardless of the provision of (pressurised) deep sewerage and arrangements to deal with hydrocarbons and runoff, the mere risk of there being some potential failure is sufficient to refuse the Proposed Development. I disagree. Having regard to the planning framework for Priority 2 areas which seeks to minimise, and not to altogether avoid, risks, I do not consider that such a planning response is warranted, nor is it, in this instance, proportional.
Issue 3 orderly and proper planning
As I outlined at [40] to [44], Mr Sim has concerns that the Proposed Development may be contrary to orderly and proper planning. This is so because, in Mr Sim's opinion:
(a)the land use is incompatible with the Priority 2 source protection identification of the Land under SPP 2.2 and Note 25;
(b)the Planning Investigation area is, at this time, too remote to inform the exercise of discretion; and
(c)the Proposed Development presents an unacceptable risk of groundwater pollution and contamination.
I do not agree with Mr Sim's opinions. For the reasons I have set out above, I find that the Proposed Development is not contrary to the applicable planning framework and is acceptable from a groundwater management perspective.
The fact the Land forms part of an investigation area for a regional planning study that is currently in an embryotic stage does not, in my view, raise a question of orderly and proper planning.
Conclusion and decision
The central issue in this proceeding is drinking water quality. For the reasons I have explained, I am satisfied that the Proposed Development is consistent with the applicable planning framework.
In particular, 'club premises' is a discretionary use under LPS 17 and a use of that nature is regarded as being 'compatible with conditions' in both SPP 2.2 and the more recent Note 25. I further note that these water quality policies provide that pressurised sewerage infrastructure may be accommodated within Priority 2 areas, although under Note 25, only where there is overall reduction in an existing risk profile.
As I have explained at [115], I find that the Proposed Development does result in an overall reduction in the water quality risk profile for the Land. This is because of the benefits that result from the removal of the existing septic tanks and the proposal to include pressurised sewerage infrastructure. Sewerage infrastructure is not novel nor is it a new form of infrastructure. Its likely performance and reliability can be objectively assessed. I accept the evidence of Mr Alebakis and Ms Epworth that the relevant risks have been minimised and, in an overall sense, the Proposed Development results in an improvement on the existing situation.
Likewise, I am satisfied that the biofiltration system has been designed appropriately and will operate effectively to remove potential contaminants.
The overarching purpose of SPP 2.2 is to prevent 'detrimental effects to the groundwater resources'. I am satisfied that the Proposed Development will not cause detrimental effects on the groundwater resources.
For these reasons, I consider that the Proposed Development is consistent with the objectives of SPP 2.2 in that it is a development that is serviced by a pressurised sewerage system and is therefore 'compatible with the long-term protection and management of groundwater quality and quantity for public drinking water supply'.
The submission made by Urbanista replicate, in many respects, the case that has been put by the respondent. There is nothing in that submission which, in my view, warrants the Proposed Development being refused.
For completeness, I have also reviewed the submissions that were made to the City during the advertising of the Proposed Development.[42] The submissions are a relevant consideration pursuant to cl 67(y) of the deemed provisions.
[42] Respondent's s 24 Bundle (Exhibit 2) Tab 10.
Whilst there are concerns raised in the submissions about increases in patronage of the Land and associated traffic concerns, I do not consider this to be a sufficient basis on which the Proposed Development should be refused. No evidence was presented to me that would suggest that any significant adverse traffic and/or safety considerations will arise. While one submission referenced concerns of 150 to 180 cars attending the Land, given that there is a 50 person limit on attendance proposed (condition 3), those concerns are unlikely to materialise.
Likewise, while some residents objected to their 'peace, solitude and rest' (and similar) being interrupted, again, there is nothing before to me suggest that there will be adverse amenity impacts caused by the Proposed Development. I do not consider that there is any issue raised by these submissions that warrants the Proposed Development being refused.
For these reasons, the correct and preferable decision is to approve the Proposed Development as a 'club premises' subject to the conditions set out in Schedule A.
In terms of conditions, the applicant did not dispute or contest any of the respondent's draft without prejudice conditions. Subject to some minor edits, these are the conditions that I have imposed.
However, I have not imposed a 70A notification (under the Transfer of Land Act 1893 (WA) (TLA)) for road and rail noise. This is because I am not satisfied that such a condition is reasonably required having regard to the nature of the proposed use and the fact that it is not known whether such a notification is required pursuant to cl 6.5.3.1 of State Planning Policy 5.4 Road and Rail Noise.
I have also included a condition (Condition 19) which requires the regular and routine monitoring of the performance of the wastewater and stormwater infrastructure associated with the Proposed Development and for the City to require remedial or repair works as required on an ongoing basis.
Having regard to the principles that emerge from authorities such as Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities[43] at [168][169] and [179] and Winn v Director General of National Parks and Wildlife[44] as discussed by Chaney J in South of Perth Yacht Club (Inc) v Jacob MLA[45] at [52], I consider a condition requiring ongoing environmental monitoring and maintenance to be appropriate in the circumstances.
[43] Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301.
[44] Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 .
[45] South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160.
Orders
1.The application for review is allowed subject to the conditions listed in the Schedule A attached to these orders.
Schedule A
1.Except to the extent that any condition of this approval requires to the contrary, the approved 'Club Premises' and Change of Use of Existing Single House to 'Caretaker's Dwelling' development is to comply in all respects of the attached approved plans hereby approved, being the QDS Project No. 1959 Rev B drawings A1, A2, A3 and A4 dated 11 December 2019, as dated, marked and stamped with any requirements and annotations detailed thereon by the City of Swan. The plans approved as part of this application form part of the development approval issued.
2.This approval is for 'Club Premises' and Change of Use of Existing Single House to 'Caretaker's Dwelling' as defined in the City of Swan Local Planning Scheme No 17. The subject land may not be used for any other use without the prior approval by the City of Swan.
3.The use is to be conducted according to the 'Weekly Activities' and 'Yearly Activities' schedule and approximate number of attendees annexed to these conditions, or any alternative overall schedule approved from time to time in writing by the City of Swan for a range of activities of similar scale and intensity in aggregate to those annexed. A maximum of 50 persons are permitted on the site at any one time, this number being reserved for the activities described as 'Yearly Activities'.
4.Without prior approval provided in writing by the City of Swan, no amplified call to prayer, lectures, meetings, festivals or any other amplified activity associated with the Al-Tawheed Islamic Association of Western Australia Inc. is to be carried out on site at any time.
5.Prior to occupation or use of the development the approved parking plan must be implemented, constructed and thereafter maintained to the satisfaction of the City of Swan, for the life of the development.
6.The access and design of car parking spaces must comply with AS2890.1.
7.Subject to condition 15, vehicle parking areas, access and circulation areas must be sealed, kerbed, drained and maintained to the satisfaction of the City of Swan, in accordance with the approved plans.
8.All crossovers must be built and maintained in accordance with the City of Swan's specifications.
9.Prior to a building permit being issued, the applicant must submit and have approved by the City of Swan, and thereafter implement to the satisfaction of the City of Swan, a construction management plan addressing the following matters:
(a)how materials and equipment will be delivered and removed from site;
(b)how materials and equipment will be stored on the site;
(c)parking arrangements for contractors;
(d)construction waste disposal strategy and location of waste disposal bins;
(e)details of cranes, large trucks or similar equipment which may block public thoroughfares during construction;
(f)how risks of wind and/or water borne erosion and sedimentation will be minimised during the works;
(g)Ordinary Meeting of Council 11 March 2020; and
(h)other matters likely to impact on the surrounding properties.
10.Prior to a building permit being issued, a detailed landscaping plan for the subject site and/or the road verges must be submitted to and approved by the City of Swan and must include the following:
(a)the location, number, size and species type of existing ground covers, shrubs and trees;
(b)any existing landscape area to be retained;
(c)those areas to be updated, reticulated or irrigated;
(d)verge treatments, with specific attention paid to the screening of the parking area from Lakefarm Retreat; and
(e)screening of the facility along Hepburn Avenue.
11.The approved landscaping and reticulation plan must be fully implemented within the first available planting season after the initial occupation of the development, and maintained thereafter, to the satisfaction of the City of Swan. Any species which fail to establish within the first two planting seasons following implementation must be replaced in consultation with and to the satisfaction of the City of Swan.
12.The owner shall pay all costs associated with the removal of any verge tree(s) adjoining the subject site. Prior to any tree(s) being removed the owner is to liaise with the City of Swan on a suitable 'like' replacement and the replacement tree(s) planted at their cost to the satisfaction of the City of Swan.
13.No commercial kitchen facilities including without limitation any grease traps, are to be installed.
14.All stormwater must be contained and disposed of onsite at all times, to the satisfaction of the City of Swan. The owner of the lot is responsible to ensure the implementation of the Stormwater Drainage Proposed Concept Plan set out in Urbanise WA Project URB 0430 Drawing C800 Rev.E dated 20 May 2020, as part of construction of the proposed halls 1 and 2, the amenities building and the carpark. The implementation is to include stormwater collection points within the carpark and underground piping from the collection points to the drainage swale which is to contain a biofilter and nutrient stripping plantation treatment area. Alternatively, another stormwater management design to the satisfaction of the City of Swan may be proposed by the applicant and approved by the City of Swan. The owner is responsible to ensure through regular monitoring, maintenance and replacement of screening soils, that the swales are maintained in good working condition, are not overgrown, have effective nutrient stripping vegetation and that the soil profile is not overloaded with contaminants.
15.Prior to a building permit being issued, a Water Management Plan prepared by a suitably qualified environmental consultant shall be submitted to and approved by the City of Swan in consultation with the Department of Water and Environmental Regulation. The Water Management Plan shall address the following matters:
•potential risks to water quality from the existing land uses and proposed development including wastewater loadings and management;
•management of stormwater during construction and from carparks and internal driveways; and
•management of irrigation and nutrients from landscaped areas.
The application for a building permit must include drawings which incorporate the finished level of the carpark being raised by way of fill to a height adequate to the satisfaction of the City of Swan, to ensure that clearance of the carpark will be achieved above the height of the underlying drainage system and adjacent sump, whilst still maintaining a separation of not less than 0.3 metres between the base of any swale, and the maximum groundwater level.
16.The development is not to be undertaken unless the owner/applicant has submitted an application to the Water Corporation, and obtained the Water Corporation's approval, to connect to the Water Corporation's wastewater system south of Hepburn Avenue for the approved 'Place of Worship' and 'Caretaker's Dwelling'. The use of the 'Club Premises' must not commence until such time as the connection to the waste-water system has been made to the satisfaction of the Water Corporation.
17.The existing septic system is to be decommissioned and removed to the satisfaction of the City of Swan.
18.An acoustic report for the 'Club Premises' is to be prepared by a suitably qualified acoustic consultant and submitted to and approved by the City of Swan demonstrating compliance with the noise targets set out in State Planning Policy 5.4 - Road and Rail Noise. Any required modifications to the building(s) shall be implemented prior to occupation.
19.Arrangements being made with, and to the satisfaction of, the City of Swan to ensure, for the duration of the Club Premises land use, that:
(a)the performance of the wastewater and stormwater infrastructure on the site authorised by this approval are appropriately and routinely monitored and the results of that monitoring are reported to the City; and
(b)if required by the City to ensure appropriate performance of the wastewater and/or stormwater infrastructure authorised by this approval, any necessary remedial or repair works arising from the monitoring and reporting in subparagraph (a) will be undertaken in accordance with any directions issued by the City of Swan (in consultation with relevant State government agencies).
20.Prior to the lodgement of a Building Permit application, a Bushfire Management Plan and Bushfire Emergency Evacuation Plan prepared by a suitably qualified Bushfire Consultant is to be submitted to and approved by the City of Swan in consultation with the Department of Fire and Emergency Services.
21.Prior to the lodgement of a Building Permit application, a Notification pursuant to s 70A of the Transfer of Land Act 1893 (WA) is to be placed on the Certificate of Title of Lot 23 (No.1) Lakefarm Retreat, Ballajura advising current and future landowners that the property is in a Bushfire Prone Area.
22.Prior to the lodgement of a Building Permit application, an acid sulphate soils report and an Acid Sulphate Management Plan shall be submitted to the satisfaction of the City of Swan, in consultation with the Department of Water and Environmental Regulation.
23.All site works are to comply with the Acid Sulphate Soils Management Plan.
24.External lighting shall comply with the requirements of Australian Standard 4282 - Control of Obtrusive Effects of Outdoor Lighting.
25.Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval of the City of Swan.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
23 DECEMBER 2020
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