ASPHALTECH PTY LTD and SHIRE OF CAPEL
[2021] WASAT 25
•26 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ASPHALTECH PTY LTD and SHIRE OF CAPEL [2021] WASAT 25
MEMBER: MS C BARTON, MEMBER
HEARD: 20 JULY, 21 JULY, 22 JULY, 23 JULY 2020 AND 28 AUGUST 2020 AND 12 OCTOBER 2020
DELIVERED : 26 FEBRUARY 2021
FILE NO/S: DR 10 of 2020
BETWEEN: ASPHALTECH PTY LTD
Applicant
AND
SHIRE OF CAPEL
Respondent
Catchwords:
Town planning - Development application - Asphalt plant - Co-location with quarry - Extractive industry - Noxious industry - Characterisation of land use - Orderly and proper planning - Sustainable use and development of land - Meaning of sustainable development - Precautionary principle - Amenity impacts - Whether development compatible with setting - Delineation of locality - Whether consistency with strategic planning objectives - Separation distance from sensitive receptors - Prescribed premises - Draft works approval - Air quality - Air pollution - Gaseous and particulate emissions - Volatile organic compounds - Odour - Dust - Noise - Influencing factor - Assigned level - Basic raw materials
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA), Sch 1, Pt A, cl 2(1)(b), cl 2(1)(c), cl 2(3), Sch 3, cl 1(1), cl 2(1), cl 2(1)(c), cl 2(1)(1), cl 2(3), cl 2(3)(b), reg 7, reg 8(3), reg 9
Environmental Protection Act 1986 (WA), Pt V
Environmental Protection Regulations 1987 (WA), Sch 1
Greater Bunbury Region Scheme, cl 27
Mines Safety and Inspection Act 1994 (WA), s 4(r)
Mining Act 1978 (WA), s 8
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67
Planning and Development Act 2005 (WA), s 3(1)(c), s 4, s 252(1)
Shire of Capel Planning Scheme No 7, cl 3.2.3, cl 5.7.1(b)
State Administrative Tribunal Act 2004 (WA), s 17, s 24, s 29(3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | B Moharich |
| Respondent | : | PL Wittkuhn |
Solicitors:
| Applicant | : | Moharich & More |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63
Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139
Di Trento and Shire of Northam [2017] WASAT 121
GMF Contractors Pty Ltd and Shire of Serpentine-Jarradale [2006] WASAT 353 (2006) 48 SR (WA) 1; 151 LGERA 74
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59
Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187 at [42]
Robertson and City of Albany [2019] WASAT 3
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256
Tempora v Kalamunda (1994) 10 SR (WA) 296
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160
West Australian Shalom Group Inc and City of Swan [2019] WASAT 80
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 7 August 2019, Allerding & Associates, on behalf of Asphaltech Pty Ltd (applicant), lodged a development application with the Shire of Capel (Shire) to construct an asphalt production plant (or proposed development) on part of Lot 3 Allenville Road, Gelorup (subject site).
On 20 December 2019, the Shire refused development approval for the asphalt production plant for the following reasons (Shire's decision):
1)The proposed development does not achieve the required 1,000 metre buffer separation distance to sensitive land uses as required by the Environmental Protection Authority Guidance Statement No. 3 Separation Distances between Industrial and Sensitive Land Uses, June 2005. (EPA Guidance Statement on Separation Distances).
2)The proposed development does not achieve the required 1,000 metre screening distance for asphalt manufacturing as required by the Department of Water and Environmental Regulations Guidelines: Odour emissions, June 2019.
3)The application does not satisfy cl 67(n) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) due to the potential for the proposed development to have a negative impact on surrounding properties in terms of noise, odour and dust and air pollution emissions.
4)The application does not satisfy cl 67(r) of the Deemed Provisions due to the potential for risk to human health or safety in terms of air pollution (gaseous and particulate pollution); and
5)The application does not satisfy cl 5.7.1(b) of the Shire of Capel Local Planning Scheme No 7 (LPS 7) as it does not provide for land to be held in lots that are suitable for the long-term use of land for Rural Pursuits.
The Shire's decision was deemed to be a refusal under the Greater Bunbury Region Scheme (GBRS).
On 13 January 2020, the applicant commenced proceedings in the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to review the Shire's decision. The applicant is seeking orders from the Tribunal setting aside the Shire's decision and granting approval for the asphalt production plant.
By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application falls within the Tribunal's review jurisdiction. The Tribunal is to review the decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it. The Tribunal is not limited to the material before the Shire as the original decisionmaker, but may consider new material. The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities. Section 29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.
For the reasons set out in this decision, the Tribunal finds that the application the subject of the review should be dismissed and the Shire's decision affirmed.
The issues for determination
The parties agree that the following issues arise for determination by the Tribunal:
1)Having regard to all relevant Deemed Provisions cl 67 factors, is the correct and preferable decision to refuse development approval, or to grant conditional development approval? This issue is more specifically informed by issues (2) - (4).
2)Is the development acceptably compatible with its setting? (See particularly cl 67(m) of the Deemed Provisions).
3)Would the proposed development unacceptably affect the amenity of the locality, by way of emissions of odour, dust, gaseous constituents or noise? (See particularly cl 67(n) of the Deemed Provisions).
4)Is the proposed development consistent with orderly and proper planning? (See particularly cl 67(b) of the Deemed Provisions).
The applicant raises the following two additional issues for determination by the Tribunal:
5)Is the use of the subject site consistent with the strategic planning objectives for this area, having particular regard to the Greater Bunbury Region Scheme Strategic Minerals and Basic Raw Materials Resource Policy 2018 (GB Raw Materials Policy) and Draft State Planning Policy 2.4 - Basic raw materials (Draft SPP 2.4)?
6)Is the use of the subject site consistent with orderly and proper planning in so far as it satisfies one of the purposes of s 3(1)(c) of the PD Act which is to 'promote the sustainable use and development of land in the State'.
It is not in dispute that issues (2) - (6) are sub-issues to be considered in the course of determining the ultimate issue referred to as issue (1).
Subject site and the locality
The subject site is zoned 'Rural' under both LPS 7 and the GBRS. The registered proprietor of the subject site, which is part of Lot 3 Allenville Road, Gelorup, is Hanson Construction Materials Pty Ltd (Hanson). The land on which the subject site is located is approximately 10.2 hectares and is formally described as Lot 3 on Diagram 49248, being the whole of the land in Certificate of Title Volume 1849 Folio 61 (Lot 3).
Lot 3 is currently used by Hanson for the extraction of raw materials (Hanson quarry). If the proposed development is approved, Hanson proposes to grant a lease or licence to the applicant to undertake the construction of the asphalt production plant on a portion of Lot 3, being an area of approximately 1.48 hectares. It is intended that the applicant will purchase all of its basalt aggregate from the Hanson quarry for use in the asphalt production plant.
The land to the immediate north of the subject site, being Lot 27 Allenville Road, Gelorup (Lot 27), and the land to the east of the subject site, being Lot 2 Lillydale Road, Gelorup (Lot 2) are also owned by Hanson and operated as basalt quarries. On 7 May 2020, the Shire granted approval PA6/2020 for an extension of the footprint and duration of Hanson's basalt quarrying activities on the subject site and Lot 27.
Located to the west of the subject site are quarries owned and operated by Holcim Australia Pty Ltd (Holcim). The Rural zone interfaces with land zoned 'Residential' under LPS 7 to the west of the Holcim quarries. It is not in dispute that the subject site is located approximately 760 metres from the closest boundary of the Residential-zoned land (Exhibit 13, para 28; Exhibit 3, para 28).
Lot 3 is identified by the Department of Planning, Lands and Heritage, as an area of significant geological supplies for the extraction of hardrock aggregate (basalt) under Draft SPP 2.4. Under cl 27 of the GBRS, the Western Australian Planning Commission (WAPC) may, by resolution, require specified development adjacent to or in close proximity to a basic raw materials resource policy area to have planning approval before it is carried out. A resolution under cl 27 of the GBRS was gazetted on 9 May 2014 and provides, relevantly, that the following development must be approved by WAPC:
7.Development in the Strategic Minerals and Basic Raw Materials Resource Policy Area
Development in, adjacent to or in close proximity to the strategic minerals and basic raw materials resource policy area which, in the opinion of the WAPC or the local government, would potentially be incompatible with mining or materials extraction in the policy area or would be adversely affected by, or would adversely affect, those activities, including but not limited to agricultureintensive, animal establishment, animal husbandryintensive, caravan park, club premises, corrective institution, educational establishment, exhibition centre, fuel depot, industryrural, park home park, place of worship, private recreation, rural pursuit, veterinary centre and winery.
The southern section of the Bunbury Outer Ring Road (BORR) is proposed in close proximity to the subject site (Exhibit 2, page 259).
The conduct of the hearing and expert evidence
Each party filed and gave to the other party a statement of issues, facts and contentions. On 2 June 2020, the Shire filed a bundle of documents under s 24 of the SAT Act (Exhibit 12) (s 24 bundle). The applicant filed its bundle of documents on 23 June 2020 (Exhibit 1) (applicant's bundle) and a supplementary bundle dated 21 July 2020 (Exhibit 2). On 4 September 2020, the Shire filed a s 24 supplementary bundle in respect of its application to rely on additional documents and make additional contentions concerning the proximity of the proposed asphalt production plant to the Holcim quarries. The Shire ultimately conceded that the issue was capable of being resolved by way of a condition and filed a re-amended statement of issues, facts and contentions on 9 September 2020 (Exhibit 26).
The proceeding was heard on 20, 21, 22 and 23 July 2020 and 28 August 2020 with the parties and all expert witnesses attending the Tribunal in person. The parties' closing submissions were heard on 12 October 2020.
The Tribunal had the benefit of a site view on 20 July 2020 which commenced at the applicant's Malaga asphalt plant located at 416 Victoria Road, Malaga (Malaga plant). There is no dispute that the Malaga plant is substantially larger and has a greater capacity than the proposed development. The Tribunal was shown the control room of the Malaga plant and, from there, observed the main plant including the dryer, the cold storage bins, the conveyor belt from storage, and the system for extracting dust from various parts of the plant to the baghouse. From the floor of the plant, the Tribunal inspected the cold storage bins and was shown how the raw aggregate product was measured and transported through an enclosed conveyor belt to the dryer drum. The Tribunal observed a batch of asphalt being produced and loaded from the pugmill onto a vehicle which transported the material from the site.
The second part of the site view took place on 20 July 2020 at Gelorup. The Tribunal visited the subject site and, from the entrance to Allenville Road, observed the location of the proposed BORR and the bunding to the east at the location of the Hanson quarry. The Tribunal also inspected the proposed location of the asphalt plant on the subject site where some parts of the plant were stored on site. The Tribunal observed the bunding to the south and the west of the subject site and inspected Lot 27 and the depth of the existing pit. The Tribunal then drove south along Allenville Road and west on Hasties Road towards the residential area and observed the nature of the traffic at 55 Hasties Road. The Tribunal proceeded along Hawkins Drive loop and stopped at Orchard Loop. The Tribunal also stopped to inspect the vegetation and bunding at the corner of Hasties Road and Jules Road. The Tribunal proceeded north on Jules Roads and, from 110-112 Jules Road, observed the nature of the heavy vehicle traffic, bunding and vegetation. The Tribunal also observed the entrance to the Holcim quarry that was visible from Frances Road. The site view concluded at Bunbury Cathedral Grammar School where the Tribunal was taken to the eastern most oval and observed the vegetation adjacent to Jules Road. A map of the Gelorup site visit is Exhibit 20.
Mr Stephen Allerding, a town planner and Director of Allerding & Associates, prepared a witness statement dated 9 July 2020 (Exhibit 7). Mr Allerding was retained by the applicant to provide an independent planning assessment of the proposal that is the subject of the review application. The Shire relied on the expert evidence of Mr Donald Bothwell, who holds the position of Senior Planning Officer - Statutory, at the Shire. Mr Bothwell prepared a witness statement dated 8 July 2020 (Exhibit 14) and was the main author of the report on the proposed asphalt plant that was considered by the Council of the Shire at its meeting on 18 December 2019 at which planning approval for the proposal was refused. The Tribunal found Mr Allerding and Mr Bothwell to be honest and reliable witnesses who were of assistance to the Tribunal in its determination.
In relation to the issue of potential noise impact, the applicant relied on the evidence of Mr Tim Reynolds, who is a qualified engineer and Managing Director of Herring Storer Acoustics. Mr Reynolds has over 25 years' experience as an acoustic consultant and was engaged by the applicant to undertake an acoustic assessment of noise generated by the asphalt plant that would be received by neighbouring residences. Mr Reynolds prepared a witness statement dated 8 July 2020 (Exhibit 9), which included in Annexure 2, his acoustic assessment report dated 10 June 2019. The Shire relied on acoustic modelling undertaken by Mr Martti Warpenius, who is an acoustical engineer and Director of Reverberate Consulting Pty Ltd. Mr Warpenius has 34 years' experience as a professional acoustic consultant and was retained by the Shire to provide expert evidence in the field of environmental noise impact from the proposed asphalt plant and associated operations. Mr Warpenius prepared a witness statement dated 1 July 2020 (Exhibit 17). Mr Reynolds and Mr Warpenius prepared a joint statement dated 22 July 2020 following expert conferrals on 13 July 2020 and 15 July 2020 (Exhibit 25). The experts approached their acoustic assessments of the Malaga plant differently, with Mr Reynolds acknowledging that his approach was not wholly consistent with normal standards. For this reason, to the extent that there are differences of opinion between the noise experts, the Tribunal prefers the evidence of Mr Warpenius to that of Mr Reynolds.
The parties' expert witnesses also dealt with emission sources from the proposed asphalt production plant and their potential impact on air quality. The applicant relied on the evidence of Mr John Hurley who is the principal consultant and Director of Environmental and Air Quality (EAQ) Consulting Pty Ltd. Mr Hurley has over 15 years' experience in air quality assessments, risk assessments, emissions control and impact reduction in the areas odour, dust and toxics. He holds a double major Bachelor of Science degree in the fields of chemistry and biotechnology and was retained by the applicant to provide a scientific assessment of emission sources. Mr Hurley presented his findings in his witness statement dated 7 July 2020 (Exhibit 8) which included, in Annexure 2, an AERMOD desktop air emissions impact assessment report he prepared dated 3 July 2020. The applicant also relied on the evidence of Mr Lindsay Stephens who is the principal of Landform Research and has provided geotechnical and environmental consulting services since 1987. Mr Stephens prepared a witness statement dated 9 July 2020 (Exhibit 6).
The Shire relied on the air quality evidence of Mr Giacomo Collica, who is Managing Director of Emission Assessments Pty Ltd. Mr Collica was retained by the Shire to provide expert evidence in the field of air emissions generated by the proposed asphalt production plant. Mr Collica holds a Bachelor of Science degree in chemistry and has worked in the chemical processing and manufacturing business for 30 years. Mr Collica prepared a witness statement dated 8 July 2020 (Exhibit 16). The issue of odour was not dealt with by Mr Collica in detail because the Shire retained Mr Phillipe Najean to provide expert evidence on odour impacts related to the operation and management of the proposed asphalt production plant. Mr Najean is principal and Director of OPAM Consulting (Odour Process Audit Management Consulting) with over 20 years' experience in odour science and process engineering. Mr Najean holds an engineering degree in environmental engineering and a Masters degree in chemical process engineering. He prepared a witness statement dated 7 July 2020 (Exhibit 15) and the OPAM Consulting odour assessment (s 24 bundle, page 936). The four air quality experts prepared a joint statement dated 15 July 2020 following an expert conferral on 13 July 2020 (Exhibit 11).
Mr Collica conveyed his technical expertise and expert opinion in an objective and impartial manner. For this reason, to the extent that there are differences of opinion between the air quality experts, the Tribunal prefers the evidence of Mr Collica to that of Mr Hurley, Mr Najean and Mr Stephens.
The applicant also relied on the evidence of Mr Con Rimpas, who is a qualified civil engineer and a director of the applicant. Mr Rimpas provided detailed evidence to the Tribunal on the asphalt manufacturing process and the scope of the proposed Gelorup operations. Mr Rimpas prepared a witness statement dated 12 June 2020 (Exhibit 4) and a further witness statement dated 8 July 2020 (Exhibit 5).
The proposed development
The proposed asphalt production plant will include the following infrastructure and equipment:
•cold feeder bins, including conveyor;
•dryer drum;
•burner;
•baghouse, including stack at a height of 13.4 metres;
•recovered fines silo;
•additional reclaimed filler storage bin;
•imported filler silo;
•cold reclaimed asphalt pavement (RAP) feeding line into the mixer;
•mixing tower, hot elevator;
•air compressor;
•control cabin and plant management system;
•electrically heated bitumen storage system; and
•raw material storage bins and reclaimed asphalt storage bin.
The applicant described the process for manufacturing asphalt as follows (witness statement of Mr Con Rimpas, 12 June 2020, paras 5 - 10):
Asphalt is made by drying and heating aggregate to a temperature of around 168°C through a cylindrical drum, called the dryer. The aggregate is then elevated into a compartment called the hot bin.
From the hot bin the aggregate is dropped into a weigh bin which accurately measures the correct amount (usually 1 tonne at a time) of aggregate required to achieve a certain asphalt recipe.
Dependent on the target recipe, an accurate amount of bitumen is pumped from the main storage kettle (total capacity of about 60,000Lt held at a temperature of around 160°C) up to a weighing kettle which has capacity of around 1000Lt[.]
…
The aggregate is then dropped from the aggregate weigh bin into the mixer which has twin shaft paddles and a capacity of up to around 1200kg. The mixer is also known as a pug mill.
Within 2 seconds of dropping the aggregate into the mixer, the pre weighed bitumen, together with some 'filler' which is mostly the fines form the dust collector, or baghouse is also dropped into the mixer, and after some 30 to 40 seconds of mixing time, a door opens at the bottom of the mixer so that the mixture is dropped into the back of a tipper truck.
It is proposed that limited earthworks will be undertaken to achieve the required topographic levels and level surfaces required for installation of the proposed asphalt production plant.
The production capacity of the proposed asphalt production plant is estimated at 35,000 tonnes per annum. The proposed hours of operation are Monday to Saturday between 5.30 am and 6.00 pm, and Sunday and after hours as required.
Summary of public submissions
During the public consultation period, the Shire received 155 written submissions opposing the proposed development. The matters raised by members of the local community and industry in the submissions include, but are not limited to, the following:
•noise and air pollution impacts in addition to impacts generated by the existing quarry activities;
•reduction in quality of life for the Gelorup community;
•air pollution from the plant affecting the quality of rain water collected for domestic use including drinking, cooking, showering and washing;
•pollutants and dust contaminating rainwater collection which is the sole water supply for residents;
•the suitability of an industrial development near a semirural community and in a Rural zone;
•unknown health outcomes from the burning of petroleum products;
•traffic concerns arising from an increase in the volume of trucks on residential streets;
•concerns that chemical odour will be carried by prevailing easterly winds towards residences;
•the location of the Bunbury Cathedral Grammar School grounds within the Environmental Protection Agency recommended separation distance for asphalt works of 1,000 metres;
•the close proximity of the plant to the Bunbury Cathedral Grammar School which educates children as young as three;
•concerns about wind-blown dust and aggravating respiratory problems for existing residents;
•contaminated stormwater compromising groundwater resources;
•safety concerns from an increase in truck movements along Hasties Road which is used for community gatherings, including the Gelorup market, the Community Centre and the local skate park; and
•safety of trucks entering Bussell Highway which is a congested intersection.
In addition, the Shire tendered a witness statement of Ms Jennifer Nobbs, Director of Business and Administration of the Bunbury Cathedral Grammar School dated 17 July 2020 (Exhibit 18) and a letter from the Bunbury Cathedral Grammar School to the Department of Water and Environment Regulation (DWER) dated 2 September 2019 (Exhibit 19).
The planning framework
The relevant planning framework, which the Tribunal has considered in its determination, is attached to these reasons as Annexure A and includes references to the following:
1)PD Act
2)Deemed Provisions
3)LPS 7
4)GBRS
5)Greater Bunbury Strategy
6)EPA Guidance Statement on Separation Distances
7)GB Raw Materials Policy
8)Draft SPP 2.4
The Tribunal's consideration
Compatibility of the development with its setting
The parties agree that the proposed asphalt production plant may be characterised as 'Industry Extractive' as opposed to 'Industry Noxious' for the purposes of the land use classifications in LPS 7. 'Industry Extractive' is defined in Appendix 1 to LPS 7 to mean an industry which involves:
(a)the extraction of sand, gravel, clay, turf, soil, rock, stone, minerals, or similar substance from the land, and also the storage, treatment or manufacture of products from those materials when the storage, treatment or manufacture is carried out on the land from which any of the materials so used is extracted or on land adjacent thereto; or
(b)the production of salt by the evaporation of sea water.
'Industry Noxious' means 'an industry in which it is the subject to licensing as 'Prescribed Premises' under the Environmental Protection Act 1986 (as amended). 'An 'Industry Noxious' use is an 'X' use in the Rural zone and, therefore, is prohibited in the Rural zone. In contrast, an 'Industry Extractive' use is an 'AA' use in the Rural zone and, therefore, the use is not permitted unless the Council (or the Tribunal standing in its shoes) grants development approval.
In Di Trento and Shire of Northam [2017] WASAT 121 (Di Trento), the Tribunal considered the definition of 'Industry Extractive' in substantially the same terms as the definition in LPS 7. The Tribunal determined that for a use to fall under the second limb of the 'Industry Extractive' definition, the manufacture of products from the extracted materials could not be a minor component of the overall production process: at [34]. The Tribunal observed in Di Trento at [34]:
In essence, for a use to be characterised as an 'industry - extractive' the heart of that use has to be the extraction, quarrying or removal of raw material and the use of that material, otherwise, it just becomes another industry use[.]
The Tribunal finds that the proposed asphalt production plant meets the definition of 'Industry Noxious' in LPS 7 because it is caught by item 35 of Sch 1 to the Environmental Protection Regulations 1987 (WA) and, consequently, is a prescribed premises for the purposes of Pt V of the Environmental Protection Act 1986 (WA) (EP Act). The Tribunal further finds that the proposed use meets the definition of 'Industry Extractive' in LPS 7 because there is no dispute that the asphalt production plant will be manufacturing products from raw materials sourced from the subject site or adjacent land.
Where a land use falls within two definitions, there is a legislative mechanism in cl 3.2.3 of LPS 7 which assists in determining which use classification applies. Clause 3.2.3 provides as follows:
Where in the zoning table a particular use is mentioned it is deemed to be excluded from any other use class which by its more general terms might otherwise include such particular use.
The Tribunal has interpreted clauses of this nature as requiring a determination of which of the two use classes is more specific. The more specific definition will prevail over the more general: ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63 at [57]-[58].
The Tribunal accepts the Shire's observation that relatively few extractive industries are also prescribed premises and only a few of them would involve manufacture using products in its operation extracted from the same site or an adjacent site. On this basis, the Tribunal finds that the definition of 'Industry Extractive' is more specific than 'Noxious Industry' and, consequently, the more specific definition applies.
Accordingly, the Tribunal finds that the proposed asphalt production plant is capable of approval under LPS 7 because it falls within the meaning of 'Industry Extractive' which is an 'AA' use in the Rural zone.
The Shire contends that it is fortuitous for the applicant that the applicable land use classification is not 'Industry Noxious' and that it would be 'Industry Noxious' but for the fact that the asphalt manufacture involves the use of material extracted on site or adjacent. Although capable of being approved, the Shire contends that the proposed asphalt production plant should be regarded, as a matter of discretion, as being incompatible with its setting, having regard to the designation 'X' (prohibited) that applies under LPS 7 to an 'Industry Noxious' use in any Rural zone. The Shire's position is that a Rural zone was not designed or sited for uses such as chemical processing, the Rural zone's interface with other zones was not designed with such an outcome in mind and no buffer between the Rural and Residential zones was set down in the spatial arrangement of zones.
In contrast, the applicant contends that the threshold issue of land use classification and its related permissibility has been resolved, and the application should be determined on its merits. Because the proposed development falls within 'Extractive Industry' and is permissible within the Rural zone, the applicant contends that it is unnecessary to consider the application in the context of a land use characterisation ('Noxious Industry') which is not applicable and would never apply. In support of its contention, the applicant relies on the decision of West Australian Shalom Group Inc and City of Swan [2019] WASAT 80 at [80] in which the Tribunal found that the permissibility of the 'constituent activities' of a proposal are not relevant to a merits based assessment of a development application.
Because the Tribunal has found that the proposed development is properly characterised as 'Extractive Industry', the Tribunal accepts the applicant's contention that the threshold issue of land use classification has been resolved. However, the compatibility of the proposed development with its setting is a matter that the Tribunal must have due regard to under cl 67(m) of the Deemed Provisions in assessing the merits of a development application, if in its opinion, that matter is relevant to the development the subject of the application.
The parties have agreed, and the Tribunal finds, that cl 67(m) of the Deemed Provisions is a matter that is relevant to the exercise of the Tribunal's discretion. Under cl 67(m), the Tribunal must have regard to 'the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development'.
Mr Allerding, an expert planner engaged by the applicant, gave evidence that the subject site is surrounded on three sides by extractive industry activities and within a GBRS policy area which protects and facilitates resource extraction. In his opinion, the proposed development does not visually present towards the Gelorup residential area and is separated from the area by the Holcim quarry at a distance of approximately 800 metres. He observed that the subject site is surrounded by vegetated bunding and that the bunds prevent significant visibility into the subject site other than through the main entry gate from Allenville Road which is located to the east away from the Gelorup residential area and adjacent to the Hanson quarry on Lot 2 (witness statement of Stephen Allerding, 9 July 2020, paras 85-87). It is Mr Allerding's opinion that quarry activities have a greater propensity to generate impacts associated with dust and noise compared with a processing plant, such as the proposed asphalt production plant (witness statement of Stephen Allerding, 9 July 2020, para 91).
Mr Bothwell, who provided planning evidence for the Shire, considers that the proposed development is not compatible with its setting because it is a prescribed premises under the EP Act that is located approximately 760 metres to both Residential-zoned land and the Bunbury Cathedral Grammar School. Mr Bothwell gave evidence that (witness statement of Donald Bothwell, 8 July 2020 at para 22):
… It is my understanding that the underlying reason why certain industries are designated as prescribed premises is because they are considered by the environmental agencies to be industries which, by their nature, are likely to make significant emissions.
Mr Bothwell observed that an asphalt production plant is a prescribed premises regardless of its scale (witness statement of Donald Bothwell, 8 July 2020 at para 25). It was put to Mr Bothwell in crossexamination, and Mr Bothwell acknowledged, that there are uses in the Rural zone, such as abattoirs and piggeries, that are permissible or capable of approval and are also prescribed premises for the purposes of the EP Act (ts 34, 21 July 2020).
It is not contested that the EPA Guidance Statement on Separation Distances sets out in Appendix 1 a generic buffer distance of 1,000 metres for asphalt works from sensitive land uses, which are defined to include residential development and schools. Clause 4.4.1 of the EPA Guidance Statement on Separation Distances relevantly provides:
…
Where the separation distance is less than the generic distance, a scientific study based on site- and industry-specific information must be presented to demonstrate that a lesser distance would not have unacceptable impacts[.]
The applicant tendered plans showing the location of approved existing asphalt plants in the Perth metropolitan region which were marked with a radii of 700 metres, 850 metres and 1,000 metres to show the separation distances of the plants from residential development (s 24 bundle, pages 112-118; Exhibit 23). The Shire observed that the asphalt plants shown on the Exhibit 23 plans are generally located in industrial zones.
Mr Allerding gave evidence that the existence of asphalt plants with buffer distances of less 1,000 metres demonstrates that is it not correct to apply the EPA Guidance Statement on Separation Distances as a fixed buffer and the appropriateness of any separation distance is derived by the site specific studies and management proposals undertaken by a proponent (witness statement of Stephen Allerding, 9 July 2020, paras 66-67). It is Mr Allerding's opinion, which was not disputed, that the application of the 1,000 metres buffer distance is not a prohibition of an activity where sensitive premises are located within 1,000 metres but rather a trigger to ensure that an applicant provide appropriate site specific studies to demonstrate that the issues identified for a particular use are appropriately addressed and appropriate amenity standards are achieved for sensitive land uses (witness statement of Mr Stephen Allerding, 9 July 2020, paras 63-65; ts 65, 21 July 2020). The Tribunal accepts the evidence of Mr Allerding and finds that the 1,000 metres separation distance for asphalt works from sensitive receptors provided in the EPA Guidance Statement on Separation Distances is not a mandatory requirement or fixed buffer.
Based on the evidence before it, the Tribunal finds that the proposed development is compatible with its setting to the extent that is surrounded by other extractive industry uses and does not visually present to the Gelorup residential area. Whether the proposed asphalt production plant is compatible with development on other land in the locality, or will generate unacceptable impacts for sensitive receptors, and the extent to which those impacts (if any) can be managed or ameliorated, was the subject of detailed evidence from the parties' environmental experts. That expert evidence is also relevant to Tribunal's consideration of the amenity of the locality under cl 67(n) of the Deemed Provisions which is addressed below.
Amenity of the locality
Both cl 67(n) and cl 67(m) of the Deemed Provisions require the Tribunal to delineate and characterise the locality relevant to the development. In Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187 at [42], the Tribunal observed that:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
The applicant contends that the locality does not include the entirety of the Gelorup residential area because the land use will not be visible, nor on the evidence, will the impacts of the land use be discernible from that location. The applicant relies on the evidence of Mr Allerding in support of its contention as follows (ts 79, 21 July 2020):
The only thing I would say - normally when you're defining a locality it's not necessarily defined by environmental factors. The locality is talking about the character and aspects that relate to the character. So, I mean, the immediate locality obviously is the extraction industry area. But it's clear that the residential interface is a relevant part of the - of - of the locality. So you know, I agree that we have to consider the residential interface[.]
In Mr Bothwell's opinion, the locality may extend beyond the 1,000 metres generic buffer (ts 78, 21 July 2020):
Yes. Well, the – to the east I kept within the 1000 – the generic 1000 metre [buffer] distance. But to the west I considered that there may be – in terms of the 1000 metres, I went beyond that, given – given the residential area of Gelorup and the possibility for amenity impacts, a bit beyond the 1000 metres. For example, for gaseous emissions, dust emissions, particularly, for example, from the stack, they may, just as an example, have the capacity to – to deposit in – in – into the rainwater tanks on – on the residents' roofs in that locality[.]
Based on the evidence before it, the Tribunal finds that the built form of the development will not be visually apparent to the wider Gelorup residential area. However, in considering the environmental impacts of the development under cl 67(n)(i) of the Deemed Provisions, the Tribunal finds that the 1,000 metre generic buffer for asphalt works set out in the EPA Guidance Statement on Separation Distances is relevant to the Tribunal's delineation and characterisation of the locality.
'Separation distance' is defined in the EPA Guidance Statement on Separation Distances as 'the shortest distance between the boundary of the area that may potentially be used by an industrial land use, and the boundary of the area that may be used by a sensitive land use'. Based on the proposed location of the asphalt production plant, Mr Bothwell observed that the OPAM Consulting odour assessment map at page 6, figure 9, shows that 19 dwellings in the Residential zone and three dwellings in the Rural zone are located within the 1,000 metre separation distance. Mr Bothwell also gave evidence that bushland within the Bunbury Cathedral Grammar School campus is located within the 1000 metre separation distance but not school buildings (witness statement of Donald Bothwell, 8 July 2020 at para 43).
The Tribunal finds that the locality includes the area of extractive industry surrounding the proposed development but does not accept Mr Allerding's opinion that it is limited to the interface with the residential area. The Tribunal finds that consideration of the amenity of the locality under cl 67(n) of the Deemed Provisions extends to the environmental impacts of the proposed development on sensitive receptors located within an 1000 metre radius of the proposed asphalt production plant and, based on the evidence of Mr Bothwell, includes a portion of the Gelorup residential area to the west of the subject site, three residences within the Rural zone, and the eastern perimeter of the Bunbury Cathedral Grammar School campus.
The term 'amenity' is defined in the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [20], the Tribunal referred to the decision of Tempora v Kalamunda (1994) 10 SR (WA) 296 at 304 in which the Tribunal observed that:
… the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. The Tribunal emphasised that the first part of the inquiry involves a determination, 'as a matter of fact, [of] the objective character of the area that represents the present state of amenity.
The Tribunal finds that there are residential properties on Jules Road and Hasties Road that have memorials on title noting that the property may be subject to noise, ground vibrations and dust from basalt blasting and quarries (Exhibit 2, pages 269-272; pages 275277). The applicant contends that these hazard notifications demonstrate the existing impact of extractive industry on the Gelorup residential area. The applicant further contends that the proposed asphalt production plant will not alter the amenity or likely future amenity of the Gelorup area because extractive industry will continue to inform the character of the area due to the presence of State significant resources on and around the subject site. In support of its position, the applicant relies on Mr Allerding's evidence that extractive industry has formed a significant part of the amenity of the Gelorup area over many decades and that the addition of the asphalt production plant to the existing environment is unlikely to add any significant or adverse impacts on the amenity of the locality in which it is contained (witness statement of Stephen Allerding, 9 July 2020, para 79). The applicant also observed that the imminent development of the BORR, as evidenced by a Western Australian government media release dated 12 October 2020 (Exhibit 29), will impact the amenity of the Gelorup area in terms of traffic movements and resulting noise.
Mr Bothwell acknowledged the presence of pre-existing (and recently extended) extractive industries and their potential to generate some degree of amenity impact on land within the locality, such as dust and noise (ts 51, 21 July 2020). However, Mr Bothwell is not convinced that the existing amenity impacts is a factor that favours approval of the proposed development because it would introduce entirely new types of impacts from chemical processing which are not associated with existing or future extraction activities, namely, gaseous emissions and odour (witness statement of Donald Bothwell, 8 July 2020 at paras 3435; ts 51, 21 July 2020).
Mr Bothwell considers that future proposals for extractive industry, which are supported by the GBRS strategic policy framework, could be limited not only by the cumulative impact of existing extractive activities but also by the asphalt production plant (witness statement of Donald Bothwell, 8 July 2020 at para 36). In cross-examination, Mr Bothwell could not confirm that all lots identified as strategic geological resource in the vicinity of the subject site were under quarry (ts 38, 21 July 2020). Mr Allerding observed that the vast majority of the resource was already committed and had received approvals and, therefore, in his opinion it would be difficult to conclude that there would be undue cumulative impacts (ts 39-40, 21 July 2020).
Based on the evidence before it, the Tribunal finds that the locality is characterised by activities involving the extraction of raw materials that generate dust, vibrations and noise impacts and in which extractive industry activities interface with semi-rural and residential living. The Tribunal accepts the applicant's contention that, due to the presence of State significant resources on and around the subject site, the impacts from quarrying activities will continue to inform the current and likely future amenity of the locality.
Gaseous and particulate emissions
The applicant applied for, and DWER prepared, a draft works approval (DWER Draft Works Approval) which includes a requirement to monitor emissions at discharge point A1 for particulate matter (PM), oxides of nitrogen (NOx), carbon monoxide (CO), total volatile organic compounds (VOCs), stack rate flow and stack velocity (s 24 bundle, page 996). The accompanying DWER draft decision report to the DWER Draft Works Approval states in its conclusion that:
…
Based on this assessment, it has been determined that the Works Approval will be granted subject to the grant of planning development approval from the Shire of Capel in accordance with the Planning and Development Act 2005 (WA)[.]
(s 24 bundle, page 1036)
The applicant contends that, although not determinative, it is significant that DWER has provided support for the proposal by the issue of the DWER Draft Works Approval. The applicant also points to DWER's role in the future licensing of the asphalt production plant as providing a high level of expertise in ensuring the proper operation of the plant's environmental management.
Mr Hurley, an air quality specialist engaged by the applicant, provided evidence in relation to the risk of dust emissions from stockpiles and truck movements. He stated that aggregate and filler stockpiles are watered down to control wind-blown dust from their surfaces. In Mr Hurley's opinion, the existing separation distance from the stockpiles to the nearest sensitive receptor is sufficiently large that any airborne dust particles are unlikely to impact those locations (witness statement of John Hurley, 7 July 2020, paras 33-34).
Other sources of dust emissions identified by Mr Hurley are from the baghouse/stack and from asphalt 'drops' into stationary trucks. Mr Hurley gave evidence that dust emissions through the stack are treated prior to discharge through a baghouse which captures dust within the stream, and that the applicant has previously met discharge licence limits of PM of 50[m]g/m3 which is the limit imposed by the DWER Draft Works Approval (witness statement of John Hurley, 7 July 2020, para 36 and para 40; s 24 bundle, page 995). Mr Hurley acknowledged in crossexamination that the emissions are not treated for the removal of any gaseous constituents (ts 194, 22 July 2020). In relation to asphalt 'drops', it is Mr Hurley's opinion that there is no risk of dust impacts at the nearest sensitive receptor from the delivery of asphalt into stationary trucks.
Mr Collica, an air quality specialist retained by the Shire, gave evidence that asphalt production involves the mixing and heating of many raw materials, including bitumen which has the potential to release chemicals such as VOCs, polyaromatic hydrocarbons (PAHs), semi volatile organic compounds (SVOCs) and dioxins and furans. The majority of these compounds have a toxicity factor and an odour factor related to them (witness statement of Giacomo Collica, 8 July 2020, para 10). In Mr Collica's opinion, there is no question that exposure at close proximity to asphalt fumes has the potential to cause adverse health effects (witness statement of Giacomo Collica, 8 July 2020, para 9).
Mr Collica stated that, if properly maintained, a baghouse is very good technology for dust (ts 149, 22 July 2020). He also gave evidence that the compressed air used to pulse the outside of the bags in the baghouse (the rapping cycle) can cause fine dust to penetrate through the bags and be released to the atmosphere (witness statement of Giacomo Collica, 8 July 2020, para 33; ts 189, 22 July 2020). Mr Collica stated that there is a sufficient body of evidence to indicate that the dust will have particle bound compounds adhered to it, such as PAHs, so that the risk is quite different to just dust being emitted (ts 195, 22 July 2020). Mr Collica stated (ts 190, 22 July 2020):
… The important information is that a baghouse is very efficient but yet has the capacity to discharge, and if it's not maintained properly it will discharge particulates at very close [to] the licence limit, and further for consideration those particulates may be impacted by other compounds of interest such as polycyclic aromatic hydrocarbons that adhere to the surface. So it's very important that those baghouses are actually operating very efficiently.
It was observed by Mr Collica that the proposed asphalt production plant does not remove any of the many toxic compounds which are generated through production. The plant relies on the dilution of toxic compounds in the atmosphere, through dispersion from the stack, which is 13.4 metres above ground level (witness statement of Giacomo Collica, 8 July 2020, para 11; ts 153, 22 July 2020). Mr Collica provided the following evidence (witness statement of Giacomo Collica, 8 July 2020, para 33):
Pollution mitigation equipment provided by Asphaltech does not treat or remove PAHs, SVOCs, VOCs or Odourous compounds generated by the process. The pollution mitigation equipment, when correctly maintained and operated will only remove particulate matter. All other compounds will be released to the environment and will rely on dilution in the atmosphere to ensure that their impact to sensitive receptors is minimised.
Mr Collica further observed that the application for the DWER Draft Works Approval focussed on point source emissions of oxides of nitrogen (as nitrogen dioxide (NO2), CO, PM less than 10 micron (PM10) and PM less than 2.5 micron (PM2.5) (witness statement of Giacomo Collica, 8 July 2020, [14]; ts 150, 22 July 2020). Mr Collica gave evidence that an assessment of target pollutants such as benzene, toluene, ethyl-benzene, and xylene (BTEX) and PAHs was not undertaken as no measured data for these substances existed from the plant at Malaga. In Mr Collica's opinion, these pollutants can be modelled and he regarded their omission as significant (witness statement of Giacomo Collica, 8 July 2020, paras 14-15). In his witness statement, Mr Collica provides the following observations (witness statement of Giacomo Collica, 8 July 2020, para 33):
… low boiling point compounds will change from stable solid to a gas or fume and migrate through the plant and ultimately through the bag house to be emitted into the environment. It is important to note that these compounds, classified as B[TEX] and PAHs are typically odorous and have a much higher toxicity tha[n] combustion gases and dust; so although it is factual that combustion gases are the majority of emission[s], only small quantities of these B[TEX] and PAHs are required to cause harm to the environment and nearby sensitive receptors.
Mr Collica estimated, using the National Pollutant Inventory Estimation Technique Manual for Asphalt Plants, that the proposed asphalt production plant would generate in excess of 10 tonnes per annum of CO, NO2, PM10, VOCs, xylene, and toluene, amongst other pollutants. He estimated that the proposed plant would generate in excess of 1 tonne per annum of benzene and total PAHs. There were also a number of other compounds that are estimated to be under 1 tonne per annum, including PAHs (witness statement of Giacomo Collica, 8 July 2020, paras 21-23). These figures were based on the proposed asphalt production plant producing 35,000 tonnes of asphalt per annum (witness statement of Giacomo Collica, 8 July 2020, para 17). In Mr Collica's opinion, as BTEX and PAH emissions have not been investigated by the applicant, the site specific investigation is not sufficiently robust to justify siting the proposed asphalt production plant in its intended location, being less than 1,000 metres from sensitive receptors (witness statement of Giacomo Collica, 8 July 2020, para 25).
Mr Collica stated (ts 196, 22 July 2020):
...
There's some discussion around the likelihood or not with respect to particle-bound SVOCs and PAHs. I concur that we haven't – do not have the evidence, but there is certainly the probability for that to occur. If that probability is real and realised, then not only do we talk about emissions in terms of gaseous quantum but also particle emissions which may affect areas of residences, properties, including rain collection areas, whereby that dust over a period of time gets washed into rainwater tanks or holding vessels and, again, has the potential to contain these highly toxic compounds[.]
In response to Mr Collica's evidence, Mr Hurley stated (ts 197, 22 July 2020):
Well, I don't - again, I don't disagree with the scientific basis of what Mr Collica is saying. It's not unreasonable comments at all. I had to play the devil's advocate, but if an asphalt plant was such a contentious emissions source, regardless of siting, one would expect the requirements in terms of licensing or otherwise, regardless of DW[ER] type of licensing, would be at a higher level[.]
Mr Hurley was commissioned by the applicant to produce an assessment to address queries by the Department of Health (DoH) in its letter dated 1 October 2019 (DoH letter). The DoH letter states:
The International Agency for Research on Cancer classifies asphalt fumes as a possible human carcinogen. Fume emissions from the asphalt plant can adhere to dust from adjacent quarries and travel long distances.
The DOH is concerned that an air pollution (gaseous and particulate pollution) assessment has not been undertaken. The DOH acknowledges the emission management strategies proposed but is concerned that unlike for noise and odour, there is no assessment of the potential contribution of emissions from the plant on local air quality.
The report should consider combustion gases (NOx and CO), air toxics (BTEX and PAHs) and dusts (total suspended particulates and fine particles, PM10 and PM2.5). Although the proponent states that the plant complied with licence emission requirements when situated in Malaga, an assessment is required to determine the impact of the plant on the local air quality in Gelorup.
There is community concern about the effect of dust emissions on water quality in rainwater tanks. Data on stormwater pollution from bitumen road run-off shows that some pollutants can leach into water, although at very low concentrations. An analysis of the composition of dust emitted from the stacks is recommended.
(Emphasis added)
The report of the assessment undertaken by Mr Hurley in response to the DoH letter is entitled, AERMOD Desktop Air Emissions Impact Assessment of Asphalt Plant, and dated 3 July 2020 (AERMOD report). Mr Hurley stated in evidence, and the Tribunal finds, that the AERMOD report does not assess BTEX or PAHs. In Mr Hurley's opinion, the assessment of PAHs would be better suited to a bitumen production plant rather than an asphalt production plant (AERMOD report, page 7). Mr Hurley's gave evidence that BTEX emissions, which are part of the total VOC emissions routinely sampled and quantified, are unlikely to affect the amenity of the nearest receptor (witness statement of John Hurley, 7 July 2020, para 76). Mr Hurley referred to advice provided by DoH which suggest that health impacts due to airborne emissions are of no concern with respect to the nearest sensitive receptor (witness statement of John Hurley, 7 July 2020, para 76.1). The applicant tendered the following email from the DoH to Mr Allerding dated 5 March 2020 in support of its contention that the DoH's concerns had been addressed (Exhibit 1, page 213):
Thanks for this. I have advised the Shire of Capel that the DOH concerns have been addressed.
In relation to undertaking a dioxin or furan assessment, Mr Hurley stated that it is unwarranted for a fixed asphalt plant given that the presence of these pollutants in the asphalt emissions is unlikely to be at a level where an amenity impact would occur (witness statement of John Hurley, 7 July 2020, para 77). In cross-examination, Mr Collica agreed that the assessment of furans and dioxins was not something that DWER requires as part of its licensing regime (ts 168-169, 22 July 2020).
Mr Hurley observed that larger production asphalt production plants currently in operation in the Perth metropolitan area, encroached by urban development, have lesser separation distances than that for the proposed subject site. Mr Hurley further observed that, in general, these plants have DWER operational licences requiring monitoring for pollutants of PM, CO, NO2 and VOCs only (witness statement of John Hurley, 7 July 2020, para 79). For this reason and because the proposed asphalt production plant has historically demonstrated performance for controlling emissions and thus mitigating amenity impacts, it is Mr Hurley's opinion that the assessment of PAHs, BTEX, dioxins and furans for the proposed asphalt plant is not required (witness statement of John Hurley, 7 July 2020, para 79).
The AERMOD report provides that, with the exception of PM2.5, the assessment results listing the peak ground level concentrations show that the emissions from the proposed plant do not adversely impact on the nearest sensitive receptor (AERMOD report, page 29). This is consistent with Mr Hurley's evidence that (ts 165, 22 July 2020):
… for - for particulates and - and gaseous emissions excluding odour at this point were that all of them and excluding background data all of them were - were below the - the NEPM limits for exposure at the nearest sensitive receiver. Particulate matter 2.5 was in excess of it when you added the background concentration, but when you took it away, the contributions of PM2.5 were two per cent or less, something like that[.]
In describing the AERMOD model that he relied upon to undertake his desktop air emissions impact assessment, Mr Hurley said (ts 164, 22 July 2020):
…
At the time odour was considered but not modelled. Odour was modelled later on. Other analytes: [BTEX], polycyclic aromatic hydrocarbons and whatever other toxics, if you like, weren't modelled, frankly, speaking, because they're not – they weren't a requirement. If they were asked, we would have done them, but they weren't required to be done.
Based on the evidence before it, the Tribunal finds that that the applicant's site specific investigation, which is reflected in the AERMOD report, is not sufficiently robust to justify siting the proposed asphalt production plant less than 1,000 metres from sensitive receptors. The Tribunal finds that no assessment or modelling was undertaken by the applicant to determine whether or not there was a risk to human health or safety from BTEX and PAHs.
The precautionary principle has been applied by the Tribunal in circumstances where there is a lack of scientific data about health and amenity impacts: see, for example, Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160. The precautionary principle is triggered by the satisfaction of two conditions precedent or thresholds as identified by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256 (Telstra). First, the threat of serious or irreversible environmental damage and, second, scientific uncertainty as to the environmental damage: Telstra at [128].
The Tribunal accepts the evidence of Mr Collica and finds that BTEX, PAHs and other toxic compounds could be transported by particulate matter (such as PM2.5) to sensitive receptors in the locality, including the possibility that those toxic compounds could enter rainwater tanks used by residences of the Gelorup residential area. Applying a precautionary approach, the Tribunal finds that there is not an inconsequential risk that the amenity of the locality, which is not currently characterised by chemical or industrial processing, will be adversely affected by gaseous and particulate emissions (air pollution) generated by the proposed development.
Odour
The air quality experts jointly agreed that the components of the proposed plant that are likely to generate odorous compounds are the stack, bitumen ventilation as hot bitumen is transferred from the road tanker to the bitumen storage tank, the plume at the load-out (or dropping) of hot mix asphalt into trucks from the pugmill and the hot mix asphalt load-out in trucks. The experts agreed, and the Tribunal accepts, that the closest sensitive receptor is 670 metres south from the plant.
The applicant contends that the risk of odour from the stack is low, particularly when regard is given to the height, temperature and velocity proposed. The applicant relies on the evidence of Mr Hurley who undertook stack (AERMOD) modelling and used the data to inform his odour risk assessment. Mr Hurley concluded that ground level odour levels were lower than the odour recognition threshold and, therefore, the likelihood of nuisance at the nearest sensitive receptor is low and in most cases negligible (AERMOD report, page 22).
Mr Najean, an odour expert retained by the Shire, was of the opinion that there is a risk that odour from the stack could reach sensitive receptors. He did not consider that vertical dispersion during daytime, given the poor dispersion that can be expected early morning and late afternoon, would prevent the plume from reaching sensitive receptors (Exhibit 11, para 5). Mr Najean stated that the modelling performed by Mr Hurley has only considered the stack emissions which is not representative of the cumulative impacts from the truck loading operation (Exhibit 11, para 5).
There was some focus by the parties on the reliability of the meteorological data that informed the odour modelling from the stack. Mr Hurley relied on the Bunbury weather station, 6 kilometres to the north of the subject site, while Mr Najean had based his assessment on data from Dardanup, which is 33 kilometres east of the subject site. There was evidence before the Tribunal that the Dardanup collection point is administered by the Department of Primary Industries, primarily for rainwater data, while the Bunbury meteorological station also operates as a DWER air quality monitoring station for the Bunbury region (ts 166-167, 22 July 2020). For this reason, and because the Bunbury station is more likely to reflect local conditions, the applicant contends that Mr Hurley's odour modelling is more reliable and should be preferred.
Mr Nejean explained his approach as follows (ts 167, 22 July 2020):
… My purpose was not to use the data in the model. My purpose was to assess what sort of frequency of wind is (indistinct) from the quadrant north easterly, south easterly. You can have in Gelorup at the proposed site that can push (indistinct) of emissions toward the sensitive receptors on the west. So we can – we can argue about the validity or the accuracy of the data. I think none of – none of the – none of them, neither the one from – from (indistinct) okay are truly representative of Gelorup and that's what we can agree upon and the purpose of those data – okay – are not – are not exactly the same either[.]
Mr Hurley, who relied on the CSIRO air pollution model, TAPM, which is a prognostic tool that provides upper air parameters stated in response (ts 163, 167, 22 July 2020):
I've got some comments on that. I - I - I don't agree at all with the meteorological commentary. We - we don't agree - I don't agree that - that Dardanup is anything like Gelorup compared to the meteorological that - that - that I've produced. TAPM is a - was not used in the model to predict the windspeed, the wind direction, the temperature, the rain. None of those parameters were predicted by TAPM. Those parameters were taken from the Bunbury automatic weather station.
So that - the surface data at Bunbury, six kilometres away, sitting on roughly the same longitude - comparable distances from the coast within the same terrain settings and otherwise. Land use is almost identical with the exception of there being less houses. Although I would suggest they're neither here nor there in that regard. Windspeed, wind direction, temperature, rainfall at the Bunbury automatic weather station is entirely representative of Gelorup. It absolutely is. That can't be in dispute. The TAPM data is used to model upper air at height as you go up in increments of height above - above the surface.
The Tribunal prefers the evidence of Mr Hurley to Mr Najean to the extent that it relates to the meteorological data that the experts relied on in the modelling of odour emissions. Nevertheless, the Tribunal accepts the evidence of Mr Najean that the modelling carried out by Mr Hurley was limited in that it only factored in odour emissions from the plant stack.
In relation to odour arising from the loading of trucks, the joint experts agreed that the risk of an odour impact from asphalt drops and the resulting plume at the loading bay could be reduced through the installation of enclosed skirts and screens (Exhibit 11, para17; ts 147, 22 July 2020). The experts also agreed that there are 175 drop events per day based on an average of 25 drop events at the pugmill per truck with about seven trucks per day under normal production conditions (Exhibit 11, para 4, para 6, para 10 and para 11). It's Mr Hurley's assessment that, in the worst case scenario dispersive conditions, there is a medium risk that the plume from asphalt load-out (drop events) would not disperse before reaching the nearest sensitive receptor (Exhibit 11, para 12). Mr Najean gave evidence that without skirts and screens, odour from truck loading is likely to be recognised at 800 metres from the plant (Exhibit 11, para 8). He also raised concerns regarding wind, topography and the rating by Mr Hurley of the likelihood and consequences of odour impact (Exhibit 11, para 14 - para 16). However, the applicant contends that these issues become immaterial when the appropriate management measures are put in place, particularly enclosed skirts to the pugmill chute, as referred to in the Asphaltech Air Quality Management report dated 13 April 2020 (Exhibit 6, page 11).
The Tribunal finds that the following daily truck movements are generated by the proposed asphalt production plant on average over a 200 day working year:
• raw materials - six movements in and six movements out (12 total);
• asphalt large trucks (25 tonne) - seven movements in and seven movements out (14 total); and
• asphalt small trucks (3 tonne) - three movements in and three movements out (6 total).
It was the evidence of Mr Rimpas that, until the BORR is established, 35% of the trucks will use Hasties Road (ts 140, 22 July 2020). During the course of the hearing, the applicant agreed to a condition that trucks should not use Hasties Road before 7 am and after 6 pm.
The joint experts agreed that the hot-mix asphalt load-out in trucks represents a significant source of odour (Exhibit 11, para 6). The applicant relies on the use of truck coverings with tarpaulin in its existing operations to manage emissions after the load-out of asphalt (ts 140, 22 July 2020). The joint experts agreed that there will be a reduction in odour from the covering of the trucks (ts 147, 22 July 2020).
Mr Collica provided the following evidence in relation to odour from truck loading, (witness statement of Giacomo Collica, 8 July 2020 at para 33):
…
There is no evidence that the plumes will not reach sensitive receptors. The volume of vehicle movements within the local area will increase intensely once asphalt production increase. As the final product leaves the site in a truck which is covered by a tarpaulin only (not sealed) each truck will leave behind it a wake of visible plume of odorous VOCs, SVOCs and PAHs which depending on atmospheric conditions may remain combined (not disperse) and may reach sensitive receptors.
There was evidence before the Tribunal that the temperature of an asphalt mix will impact the types of emissions released and that the hotter the mix, the greater likelihood of emissions. The applicant contends that it applies strict management requirements to the temperature of its mixes. In circumstances where asphalt has to travel longer distances, the applicant relies on the filler known as Sasobit (ts 119, 22 July 2020). The experts agreed that maintaining temperatures below 168° celsius is important to manage odour emissions (ts 147, 22 July 2020).
The experts agreed that the risk of odour impact arising from the delivery of bitumen is low and can be managed by ensuring the storage tanks are not overfilled (Exhibit 11, para 3).
The applicant contends that the risk of impact on amenity from RAP odour emissions is low because it is unlikely that RAP will be used at the subject site. RAP is a processed asphalt product which has already been crushed and/or screened to size for recycling into new asphalt.
The experts agreed that certain sources of odour, such as the loading of trucks, could be mitigated by the implementation of appropriate management measures. However, on the basis of the evidence before it, the Tribunal finds that there is a risk that odour from the asphalt production plant (which includes but it not limited to the plant stack) could reach sensitive receptors, the closest of which is 670 metres from the proposed development, if local weather conditions result in poor plume dispersion. The Tribunal further finds that the hot-mix asphalt load-out in unsealed trucks represents a significant source of odour and that truck movements from the asphalt production plant, which will, until the establishment of the BORR, include transport of asphalt along Hasties Road during daytime hours.
Noise
The parties' noise experts agreed that the assigned decibel (dB) levels as determined under the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) apply to the proposed development. Regulation 7 of the Noise Regulations relevantly provides that noise emitted from any premises when received at other premises must not cause, or significantly contribute to, a level of noise which exceeds the assigned level in respect of noise received at premises of that kind and must be free of tonality, impulsiveness and modulation when assessed under reg 9 of the Noise Regulations.
Regulation 8(3) of the Noise Regulations provides that the assigned level of all premises is to be determined by reference to Table 1, which includes a reference to an 'influencing factor' for noise received at a 'noise sensitive premises: highly sensitive area'. The influencing factor results in an increase in the assigned dB level for the purposes of reg 7 of the Noise Regulations.
The methodology for determining the influencing factor is set out in cl 2(1)(1) of Sch 3 to the Noise Regulations and involves the drawing of two concentric circles using an appropriate land use map having radii representing 100 metres and 400 metres centred on the noise sensitive premises. The land within the concentric circles that is Type A - industrial and utility premises or Type B - commercial premises is to be identified by reference to one or more appropriate land use maps: cl 2(1)(b) of Sch 1 to the Noise Regulations. The formula for determining the influencing factor in dB is provided in cl 2(1)(c) of Sch 1 to the Noise Regulations.
The parties do not agree on the influencing factor to be applied.
The Shire contends that, in respect of extractive industries, the industrial and utility premises within the concentric circles is determined by reference to zoning maps, while the applicant contends it is determined by reference to the actual use of land.
Relevantly, under Pt A of Sch 1 to the Noise Regulations, the following premises are classified as 'industrial and utility premises':
…
4.A mine within the meaning of the Mines Safety and Inspection Act 1994.
5.Without limiting item 4, any premises used for sand, gravel, clay, limestone, or rock excavation[.]
Notwithstanding the above classifications, cl 2(3) of Sch 3 to the Noise Regulations specifically provides that if the land within either of the concentric circles is land on which a 'mining operation' is carried on, and is categorised on the land use map as land used for purposes other than for industrial or utility purposes, the land within the concentric circles that includes the mining operation is taken to be Type A land for the purposes of cl 2(1) of Sch 3.
The term 'mining operation' is defined in cl 1(1) of Sch 3 to the Noise Regulations to be 'the same definition as in the Mines Safety and Inspection Act 1994 but does not include mining operations of a kind referred to in paragraph (a), (h) or (k) of that definition'. 'Mining operations' under the Mines Safety and Inspection Act 1994 (WA) is defined broadly and includes any method of working by which the earth or any rock structure is disturbed or removed or dealt with for the purpose of obtaining any mineral or rock from it for commercial purposes or for subsequent use in industry.
Consequently, the Shire contends that it is not correct to apply the influencing factor across the entirety of the relevant quarry lot within the concentric circles. Rather, only the approved extent of working of the earth surface is permitted to attract the influencing factor which, the Shire contends, is provided for by cl 2(3) of Sch 3 of the Noise Regulations. In contrast, the applicant contends that the land used as quarries within the concentric circles is 'industrial and utility premises' being 'any premises used for sand, gravel, clay, limestone, or rock excavation' as listed in Pt A of Sch 1. On this basis, the applicant contends that the influencing factor to apply is larger because the whole of the quarry lot is the relevant premises for the purposes of the calculation in cl 2(1)(c) of Sch 3 of the Noise Regulations.
The definition of 'land use map' in cl 1(1) of Sch 3 of the Noise Regulations is also relevant. The term is defined to include a map that is contained in a 'planning scheme' as defined in s 4 of the PD Act. The Shire contends, and the Tribunal accepts, that the land within the concentric circles that is used for quarrying is categorised as 'Rural' on the LPS 7 zoning map and, therefore, is land categorised 'other than for industrial or utility purposes' under cl 2(3) of Sch 1 of the Nose Regulations.
In Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139 (Bush Beach), the Tribunal considered a proposal to expand an existing sand quarry located on land zoned Rural under the relevant local planning scheme. The Tribunal favoured an interpretation of the Noise Regulations that 'provides some measure of certainty and which relevantly protects the operator or landowner from potential prosecution': Bush Beach at [68]. Consequently, the Tribunal concluded that the whole of the quarry lot should be considered the relevant premises and, therefore, a higher influencing factor was applicable.
Schedule 3 to the Noise Regulations sets out the statutory mechanism for the determination of the influencing factor on noise sensitive premises and Sch 1 to the Noise Regulations classifies premises according to type, including industrial and utility premises (or Type A land). Having regard to the principles of statutory construction and, in particular, the maxim generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail), the Tribunal finds that cl 2(3) of Sch 3 of the Noise Regulations applies to the determination of the influencing factor in respect of the noise sensitive premises in this proceeding. The Tribunal further finds that the extractive industry within the concentric circles is a 'mining operation' (as defined in cl 1(1) of Sch 3) that is 'carried on' for the purposes of cl 2(3)(b) of Sch 3 to the Noise Regulations. Because the land on which the mining operation is carried on is zoned 'Rural' on a zoning map (and, therefore, categorised as land used for purposes other than for industrial or utility purposes), the Tribunal finds that the land within the circles that includes the mining operation is to be taken to be Type A land (industrial and utility premises). The Tribunal observes that cl 2(3) of Sch 3 is not limited in its application to land within the concentric circles that is used for (active) mining operations. Rather, the clause states that 'land within the circles that includes the mining operation is to be taken to be Type A land'. On the basis of this construction, the Tribunal agrees with the decision in Bush Beach to the extent that the Tribunal found that where an extractive industry is located on land that is zoned 'Rural', the whole of the quarry lot that is located within the concentric circles is Type A land for the purposes of calculating the influencing factor.
Consequently, the Tribunal accepts the influencing factor applied by the applicant's noise expert, Mr Reynolds, in his noise assessment.
The noise experts provided disparate evidence in relation to ground contours, ground cover absorption factor, source heights, noise reflections, noise sources and adjustments for intrusive factors.
Mr Reynolds conducted a noise assessment by taking two measurements from a single point source. If the assessment had been undertaken to standard, Mr Reynolds stated that there would be a need to take the measurements at 5 metres above ground level and multiple points from a rectangle marked around the location of the plant. Mr Reynolds also stated that he was satisfied with his approach to 'come up with the right answers for what the noise emissions are going to be from this facility' (ts 251, 23 July 2020). Mr Reynolds explained that the reasons he relied on two measurements from a single point source was to give him 'a reasonably good calibration point measurement to do in terms of the model' (ts 250, 23 July 2020). He stated (ts 250, 23 July 2020):
… it's not necessary to go around and measure everything in its fine detail, because there's also difficulties in doing that. And quite often when you do that, you end up with a lot higher sound power level or noise level for a plant than is actually the case, and, therefore, you end up with a super, super conservative answer (indistinct) and that doesn't provide, in my opinion, benefit[.]
Mr Warpenius is of the opinion, based on his own noise modelling, that the true noise emissions from the plant is likely to be between 5 dB and 15 dB higher than that presented by Mr Reynolds (joint witness statement of Timothy Reynolds and Martti Warpenious, 22 July 2020, page 15). Mr Warpenius did not have the opportunity to conduct any measurements of the Malaga plant and has not measured an asphalt production plant before (ts 246, 23 July 2020). In his witness statement, Mr Warpenius lists 61 separate potential noise sources expected to be active at the proposed asphalt production plant and considers that certain noise sources, such as aggregate trucks and front end loaders, should have been included in the assessment conducted by Mr Reynolds. Mr Warpenius stated (witness statement of Martti Warpenious, 1 July 2020, [65]):
The forecast level of noise generation, the character of this Asphalt plant noise, the lack of other industrial noise during the night all lead me to conclude that there is a real risk of a significant reduction in amenity, and the likelihood of unreasonable noise being generated by the propos[ed] Asphalt plant.
The applicant observed that in Mr Reynolds' initial report in June 2019, he relied on a sound power level of 98 dB based on his firm's archives on asphalt production plant noise emissions. He later revised this figure to 102 dB after taking measurements from the Malaga plant, and relied on this figure in his model even though it is a bigger plant (ts 243, 23 July 2020). Mr Reynolds expected the sound power level of the proposed development to be less (ts 245, 23 July 2020). Mr Warpenius agreed that, all things being equal, the smaller plant would likely make less noise but how much less had not been addressed in any way (ts 245, 23 July 2020). Mr Warpenius stated that the sound power level provided to DWER in the works approval application was estimated by the applicant to be 92.1 dB. Mr Warpenius is of the opinion that the application for the DWER Draft Works Approval was not accurate and underestimated the true noise impact (witness statement of Martti Warpenius at para 11).
The Shire relied on examples of sound power levels from three other asphalt production plants which had a higher capacity than the proposed Gelorup plant. The applicant contends, on the basis of the evidence of Mr Rimpas, that the examples provided by Mr Warpenius had different components from the Malaga plant and the proposed development (such as scalping screens and vibrating screens), and the Orange Grove example had 'an enormous capacity' (ts 110, 22 July 2020).
Finally, the applicant contends that given Mr Reynolds' practical approach, and the use of real measurements of an existing, analogous (if not much larger) plant, that his evidence should be preferred to that of Mr Warpenius. The applicant observed that Mr Reynolds has operated as a noise consultant in the Western Australian jurisdiction for a significantly longer period than Mr Warpenius.
The experts agreed that the Noise Regulations do not apply to noise emissions from the propulsion and braking systems of trucks on roads (joint witness statement of Timothy Reynolds and Martti Warpenious, 22 July 2020, pages 16-17). Mr Warpenius stated, however, that there would be a significant increase in the number of truck movements on Hasties Road and Lilydale Road during the night period which would be noticeable to residences (witness statement of Martti Warpenious, 1 July 2020, paras 56-61). During the course of the hearing, the applicant agreed to conditions that night-time operations would be limited to 24 occasions per calendar year and that trucks should not use Hasties Road before 7 am and after 6 pm.
Compliance with the Noise Regulations does not necessarily mean that the noise generated by a proposed development will have an acceptable acoustic impact on the existing amenity of a locality. In GMF Contractors Pty Ltd and Shire of Serpentine-Jarradale [2006] WASAT 353 (2006) 48 SR (WA) 1; 151 LGERA 74 at [61], the Tribunal found that '[c]ompliance with the Noise Regulations is a necessary, but in some cases not sufficient criterion, to ensure that the noise emissions from a proposed development would not have an unacceptable acoustic impact on the locality'.
The Tribunal accepts the influencing factor calculated by Mr Reynolds and, therefore, the higher assigned levels relied on in his noise assessment. However, the Tribunal finds that the Malaga plant noise data, relied on by Mr Reynolds, was not collected in a manner that was wholly consistent with normal standards. For this reason, the Tribunal is not satisfied that the sound power level of 102 dB produced by the noise modelling for the Gelorup plant is an accurate estimate of the noise levels that will be generated by the proposed development. Having regard to the evidence of Mr Warpenius, which is preferred, the Tribunal finds that there is a real risk of exceedances of the night-time assigned levels and, consequently, unreasonable noise being generated by the proposed development. Accordingly, the Tribunal accepts the evidence of Mr Warpenius and finds that there is likely to be a significant reduction in the amenity of the locality due to plant noise.
Strategic planning objectives for basic raw materials
The applicant contends that the proposed asphalt production plant is consistent with the strategic planning objectives for basic raw materials (BRM), having particular regard to the provisions of the Greater Bunbury Strategy, the GB Raw Materials Policy and Draft SPP 2.4.
The applicant observes that the Greater Bunbury Strategy supports a robust, diverse and sustainable economy (cl 1.1) and the sequential development of strategically located greenfield expansion areas for urban and industrial uses (cl 1.3). The applicant further observes that the subject land is near an investigation area under the Greater Bunbury Strategy but these areas will not necessarily be redeveloped in the short to medium term (cl 5.2(7); witness statement of Stephen Allerding, 9 July 2020, paras 34 -35).
There is no dispute that the subject site falls within a policy area identified in Figure 1 of the GB Raw Materials Policy. Under cl 5.3 of the GB Raw Materials Policy, local governments (and the Tribunal standing in their shoes) are to have due regard to the Policy in making decisions about the use or development of land within the GB Raw Materials Policy areas. Accordingly, the Tribunal finds that the GB Raw Materials Policy is a State policy to which the Tribunal must have due regard in considering the proposed development.
The principal purpose of the GB Raw Materials Policy is to ensure the long-term security for access for minerals and basic raw materials through land use planning and development control (cl 1.4, s 24 bundle, page 905). Clause 5.1 of the GB Raw Material Policy provides as follows:
Strategic resources and their buffers are not to be developed for other purposes until the resource is extracted, or unless development is compatible with the future extraction of the resource.
The policy intent of Draft SPP 2.4 is to:
Enable the responsible extraction of BRM, while ensuring the protection of people and the environment. Ensuring broad compatibility between land uses is essential to delivering this outcome.
One of the policy objectives in cl 5(e) of Draft SPP 2.4 is to:
…
prioritise the extraction and availability of BRM through the identification of sequential use sites and planned extraction and remediation as appropriate for the final intended land use;
The applicant contends that the proposed development is compatible with the future extraction of a strategic resource and sequential land use. Also, the applicant contends that the proposed land use is an efficient way of using the resource, having regard to the fact that such allied land uses are specifically contemplated by the definition of 'Industry Extractive' under LPS 7. In Mr Allerding's opinion, the GB Raw Materials Policy protects extractive industries in whatever form they take, including the manufacture or processing of materials that facilitates the extraction of the resource (ts 60, 21 July 2020).
In contrast, the Shire contends that, having regard to the provisions of the GB Raw Materials Policy, the applicant has overstated its position. The Shire points to cl 1.5 of the GB Raw Materials Policy which provides:
Identification of strategic resources does not presume that extraction would be environmentally acceptable or that subsequent approval for extraction would be guaranteed. Nor does it remove the requirement of local government authorities or proponents to meet their obligations to identify those environmental constraints that may determine the extent and/or manner in which a proposal may be implemented.
The Shire contends that the policy framework protects only, literally, 'extraction' or 'mining' and referred the Tribunal to the definition of 'mining operations' in s 4(r) of the Mines Safety and Inspection Act 1994 (WA) which excludes, amongst other things, 'facilities for the manufacture of goods from mining products'. The Shire also referred to the definition of 'mining operations' in s 8 of the Mining Act 1978 (WA) which, the Shire contends, is even narrower.
In support of its contentions, the Shire points to evidence of Mr Bothwell that the GB Raw Materials Policy does not protect an 'Industry Extractive' use in the extended sense of the LPS 7 definition in respect of the manufacture or the processing of materials (ts 40, 21 July 2020).
There is no dispute that the GB Raw Materials Policy and Draft SPP 2.4 form part of the strategic planning framework which is principally aimed at protecting significant geological supplies and their buffers. In light of this objective, the Tribunal finds that the reference in cl 5.1 of the GB Raw Materials Policy to compatibility of development with future resource extraction should be interpreted having regard to the broader strategic planning context. The Tribunal prefers the evidence of Mr Bothwell to that of Mr Allerding and finds that the strategic planning objectives for BRM referred to in the GB Raw Materials Policy and Draft SPP 2.4 have limited application to the proposed development.
Requirements of orderly and proper planning
The meaning of the phrase 'orderly and proper planning' was considered by the Western Australia Supreme Court in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall). Pritchard J held at [179] to [180]:
… The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
The applicant contends that the proposed development is consistent with orderly and proper planning because it is broadly consistent with the objectives and the provisions of the relevant planning framework. It is the applicant's position that the extractive industry use is a sequential one, and fits within an intended progression from an historical rural use, to extraction, and when the resource is depleted, urban. The applicant points to the strategic intent of the planning framework and relies on the evidence of Mr Allerding that the proposed development is consistent with that sequential land use (ts 50-51, 21 July 2020). The applicant further contends that no weight should be given to the draft local planning scheme which, if gazetted, would prohibit the proposed development on the basis that it is not seriously entertained.
The applicant contends that due regard should be given to the alignment of the proposed development with the objectives of the PD Act, particularly in relation to the promotion of the sustainable use and development of land as contained in s 3(1)(c) of the PD Act (sustainability objective).
The scope of the term 'sustainable development', which is not defined in the PD Act, was recently considered by the Tribunal in the decision of Robertson and City of Albany [2019] WASAT 3 (Robertson) at [174]-[180]. In Robertson, the Tribunal referred to the seminal decision of Preston J of the NSW Land and Environment Court in Telstra. One of the six main principles of sustainable development referred to in Telstra at [110] and [112] is the effective integration of economic, social and environmental considerations in the decision-making process. The terms 'economic', 'social', and 'environment' are not defined in the PD Act. However, the concept of 'environment' is defined broadly in s 3 the EP Act as follows:
environment, subject to subsection (2), means living things, their physical, biological and social surroundings, and interaction between all of these[.]
Subsection (2) of the EP Act provides:
For the purposes of the definition of environment in subsection (1), the social surroundings of man are his aesthetic, cultural, economic and social surroundings to the extent that those surroundings directly affect or are affected by his physical or biological surroundings.
In Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59 (Mt Lawley) at [47], the Tribunal recognised that '[s]ustainability is now a core element of orderly and proper planning'. The Tribunal in Mt Lawley considered the meaning of the term 'sustainability,' and determined that (at [48]):
Sustainability requires the integration of the social, economic and environmental consequences of land use and development in order to deliver a better quality of life now and for future generations. The proposed development involves orderly and proper planning, and in particular, the sustainable use and development of land. It involves the 'wise use and management' ([State Planning Policy No 1 State Planning Framework Policy (SPP 1)] cl 3 A1) of 101 000 cubic metres of fill, 'reduce[s] the need for transport' (SPP 1 cl 3 A2) and avoids social, economic (avoiding damage to streets within the local government's care, control and management) and environmental detriments which would flow from 11 222 additional heavy truck movements passing along local streets and close to residences[.]
In support of its position that the proposed use meets the sustainability objective in the PD Act, the applicant relies on the principles enunciated in Mt Lawley. The applicant also relies on the decision in Robertson where the Tribunal took into account that the proposed limestone quarry would service farmers in the surrounding Great Southern region (rather than having to rely on lime being transported from the Margaret River region) thereby reducing travel distances and resultant carbon emissions. The applicant also referred the Tribunal to the decision of Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71, in which the Tribunal reasoned at [56]:
… The proposed extension of hours of operation promotes the sustainable use and development of land, because the location of the site, proximate to the CBD and abutting the regional freeway system, minimises travel distances, and hence carbon emissions, and reduces traffic pressures on minor roads, and enables construction activities to take place in the CBD at night when there is generally reduced traffic on the roads, resulting in shorter travel times and thereby reduced carbon emissions.
The applicant relies on the evidence of Mr Rimpas to demonstrate that the applicant is a leader in innovation in the asphalt industry and technologically advanced equipment (witness statement of Con Rimpas, 8 July 2020, at paras 9-10). Mr Rimpas stated that he has a strong commitment to sustainable practices, which was a major consideration in choosing to co-locate with a quarry from which the applicant would obtain all of its aggregate. Mr Rimpas' evidence is that (witness statement of Con Rimpas, 8 July 2020, at para 37):
If we were not co-locating with Hanson Construction in the manner proposed, we would need to truck in the aggregate from a quarry provider. Co-location would result in a significant reduction in truck movements to and from the Gelorup site given 90% of our product relies on aggregate from the quarries in the region.
Mr Allerding provided evidence, which was not contested, that the colocation of the asphalt production plant and the quarry will 'reduce time and trip costs with commensurate benefits in reduced CO2 emissions, road and vehicle wear and tear, safety and efficiencies in the cost of resource production' (witness statement of Stephen Allerding, 9 July 2020, at para 112). The imminent construction of the BORR and, therefore, the subject site's access to major roads, is also a factor the applicant contends supports the sustainability objective of the PD Act as it will avoid the need to haul aggregate through more sensitive areas.
The Tribunal observes that there was no data or evidence presented by the applicant on the likely reduction in fugitive CO2 emissions that would be achieved through co-location of the asphalt production plant with the Hanson quarry as opposed to a standalone facility. Nevertheless, the Tribunal accepts the applicant's contentions and the evidence of Mr Rimpas and Mr Allerding as to the benefits of colocation that they have identified.
The Tribunal finds that the benefits of co-location identified by the applicant are consistent with the principles of sustainability. However, having regard to the Tribunal's findings on the applicant's site specific assessment and the potential impacts on the amenity of the locality from gaseous emissions, odour, and noise, the Tribunal considers that the benefits of co-location do not outweigh the impacts of the proposed development on the air quality of the locality. On balance, the Tribunal finds that the proposed use of the subject site for an asphalt production plant does not promote the sustainable use and development of land in the State for the purposes of the objective in s 3(1)(c) of the PD Act.
Because the proposed development does not meet the sustainability objective in s 3(1)(c) of the PD Act, the Tribunal finds that the proposed use and development of the subject site for an asphalt production plant does not satisfy the principles of orderly and proper planning as enunciated by the Tribunal in Mt Lawley and by Pritchard J in Marshall. In considering the requirements of orderly and proper planning under cl 67(b) of the Deemed Provisions, the Tribunal has not afforded any weight to the Shire's proposed draft local planning scheme.
Conclusion
The subject site, and the land that immediately surrounds it, is used for the extraction of raw materials which is a permissible use in the Rural zone of LPS 7. The proposed asphalt production plant is a use that is capable of approval in the Rural zone because the Tribunal finds that the proposed use can be characterised as 'Industry Extractive' under LPS 7.
The proposed development is surrounded by other extractive industry uses and does not visually present to the Gelorup residential area. Nevertheless, having regard to its relationship with development on other land in the locality, the Tribunal finds that the proposed development is not compatible with its setting under cl 67(m) of the Deemed Provisions because of its unacceptable impact on sensitive receptors by the emissions of odour, dust, gaseous constituents and noise. For the purposes of the Tribunal's determination, the locality includes the area of extractive industry surrounding the subject site and that portion of the Gelorup residential area to the west and within 1,000 metres of the proposed development.
The Tribunal concludes that, having due regard to the relevant matters in cl 67 of the Deemed Provisions, the application should be refused because the proposed asphalt production plant:
1)is not compatible with development on other land in the locality due to its unacceptable impact on sensitive receptors by the emissions of odour, dust, gaseous constituents and noise;
2)would unacceptably affect the amenity of the locality, which is not currently characterised by manufacturing or chemical processing, by the emissions of odour, dust, gaseous constituents and noise;
3)is not consistent with the requirements of orderly and proper planning because the benefits of co-location identified by the applicant do not outweigh the impacts of the proposed development on the air quality of the locality; and
4)on balance, does not promote the sustainable use and development of land for the purposes of s 3(1)(c) of the PD Act notwithstanding the benefits of co-location identified by the applicant.
Based on the evidence before it, the correct and preferable decision is for the Tribunal to dismiss the application under s 252(1) of the PD Act. Accordingly, the Tribunal will affirm the Shire's decision to refuse development application PA167/2018 for an asphalt production plant at Lot 3 Allenville Road, Gelorup.
Orders
The Tribunal orders:
1.The application is dismissed.
2.The respondent's decision made on 20 December 2019 to refuse development application PA167/2018 for an asphalt plant at Lot 3 Allenville Road, Gelorup, is affirmed.
3.The parties have liberty to apply within 21 days from the date of this order to file with the Tribunal and serve an application for costs, including written submissions and any supporting documentation.
4.If a party elects to make an application for costs, the responding party has 14 days from the date of the application to file with the Tribunal and serve written submissions and any supporting documentation in reply.
5.Subject to any further order, any application for costs will be determined entirely on the documents pursuant to s 60(2) of the StateAdministrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
26 FEBRUARY 2021
0
13
10