AUSTRAL BRICKS (WA) PTY LTD and SHIRE OF SERPENTINE JARRAHDALE - [2023] WASAT 40

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA); LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   AUSTRAL BRICKS (WA) PTY LTD and SHIRE OF SERPENTINE JARRAHDALE [2023] WASAT 40
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MR R POVEY, MEMBER
DR G J MIDDLE, SESSIONAL MEMBER

HEARD:   28 - 31 MARCH 2023 and 4 APRIL 2023
DELIVERED          :   7 JUNE 2023
FILE NO/S:   DR 223 of 2022
BETWEEN:   AUSTRAL BRICKS (WA) PTY LTD
Applicant
AND
SHIRE OF SERPENTINE JARRAHDALE
Respondent

FILE NO/S: DR 24 of 2023
BETWEEN: AUSTRAL BRICKS (WA) PTY LTD
Applicant
AND
SHIRE OF SERPENTINE JARRAHDALE
Respondent

Catchwords:

Town Planning – Extractive industry – Application for extension of time‑limited development approval – Ministerial call-in – Characterisation of application – Environmental impacts – Surface water – Dust – Conditional approval – Scope of power to impose conditions where application is limited to amendment of condition – Sufficient evidentiary basis for conditions

Local laws – Extractive industry – License application – Interaction with application for development approval

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 64, cl 67(2), cl 77, cl 77(1), cl 77(1)(b), cl 77(1)(c), cl 77(2)(a), cl 77(2)(c), cl 77(4)
Planning and Development Act 2005 (WA), s 246(2)(b)
Shire of Serpentine Jarrahdale Extractive Industries Local Law, cl 1.2(1)(a), cl 2.1, cl 2.3, cl 2.3(1), cl 2.3(1)(a), cl 3.1, cl 3.1(1), cl 4.3, cl 4.3(1), cl 4.3(1)(e), cl 4.3(2), cl 7.4
Shire of Serpentine Jarrahdale Local Planning Policy: 4.10 Extractive Industries (Including Extraction of Mineral Sand and Other Minerals), cl 6.1
Shire of Serpentine Jarrahdale Town Planning Scheme No 3, Sch 3, Sch 6, cl 53
State Administrative Tribunal Act 2004 (WA), s 30, s 31
State Planning Policy 2.4 Planning for Basic Raw Materials, s 3, s 3.1, s 4, s 4.1, s 5, s 6, s 6.1, s 6.2, s 6.3, s 6.3(a), s 6.5, s 6.5(c), s 6.5(f)
State Planning Policy 2.9 Water Resources, s 4, s 5, s 5.1, s 5.1(ii), s 5.1(iii), s 5.2, s 5.4, s 5.4(ii)

Result:

Result - DR 223 of 2022 - the Tribunal recommends that the Minister approve the application subject to conditions

Result - DR 24 of 2023 - the application cannot be granted unless and until development approval is granted and the matter is adjourned pending the Ministers determination of DR 223 of 2022

Category: B

Representation:

DR 223 of 2022

Counsel:

Applicant	:	Ms B A Moharich
Respondent	:	Mr P L Wittkuhn

Solicitors:

Applicant	:	Moharich & More
Respondent	:	McLeods

DR 24 of 2023

Counsel:

Applicant	:	Ms B A Moharich
Respondent	:	Mr P L Wittkuhn

Solicitors:

Applicant	:	Moharich & More
Respondent	:	McLeods

Cases referred to in decision:

Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294
Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Ors [1999] WASC 1007
Marock Pty Ltd v Billjoy Pty Ltd [1981] VR 413
MEPC Australia Ltd & Anor v Westfield Ltd [1998] QCA 345; 100 LGERA 204
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485
R v Resource Planning and Development Commission; ex parte Dorney (No 2) [2003] TASSC 69; 12 Tas R 69
Re Smith; Minister for Local Government of WA; Ex parte Ransberg Pty Ltd [1992] WASC 531; (1992) 80 LGERA 401
Reid v Western Australian Planning Commission [2016] WASCA 181

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant has, since 2008, operated an extractive industry at what is now Lot 31, 104 Kiln Road, Cardup (Site) pursuant to three sets of approvals – a development approval (DA) granted under each of the Metropolitan Region Scheme (MRS)[1] and the local planning scheme and an Extractive Industries Licence (EIL) granted under a local law.
¹The question of approval under the MRS is not in issue in this case and will not be referred to again.
A DA was first issued under the local planning scheme in 2006. A second DA was issued in 2012. Several EILs have been issued over the years, most recently on 20 February 2019. Both the 2012 DA and the 2019 EIL were subject to conditions that provided that they expired on 31 December 2022.
In anticipation of such expiry, the applicant, through its consultant, applied for an extension of both the 2012 DA and the 2019 EIL for an additional five–year period (i.e. to the end of 2027)[2] by letter dated 18 August 2022. The application for the two approvals was 'joint' in that while separate application forms were completed, the supporting information provided was the same and covered both applications.
[2] As will be seen, the original application sought an extension of five years or, in the alternative, the deletion of the condition altogether so that the permissions were not time limited. At the hearing the applicant did not press for the 'perennial' alternative.
The Council of the respondent refused the DA application at its ordinary meeting on 12 December 2022, which decision was communicated formally by letter dated 19 December 2022. The EIL application was also refused.
The applicant sought review of both decisions: on 16 December 2022 (for the DA refusal) and on 11 February 2023 (for the EIL refusal).
Following an expedited process, the two applications for review were heard together over four days at the end of March 2023 with the evidence in each matter taken as the evidence in the other.
However, the decision in one cannot be the decision in the other because, pursuant to s 246(2)(b) of the Planning and Development Act 2005 (WA) (PD Act), the Minister for Planning (Minister) has determined to call in the application for review of the DA refusal, directed the Tribunal to hear the application and, without determining it, to refer it to her with recommendations for her determination.
For the reasons that follow we recommend that the DA ought to be granted, subject to conditions.
We have also determined that the EIL ought to be granted. However, the local law under which the EIL is sought prohibits the grant of an EIL in the absence of a DA. Accordingly, we are unable to make such an order unless and until the Minister has determined to grant the DA.
Accordingly, we will adjourn the EIL proceeding (DR 24 of 2023) for directions, pending the Minister's determination of the DA application (DR 223 of 2022).

The Site and its history

As noted above, extractive industry operations commenced on the Site in 2008 pursuant to a DA and EIL, both of which were granted in 2006.
The 2006 DA[3] was granted in relation to Lot 6 Shale Road, Cardup.
[3] Exhibit 20.
That former lot was located in what is now in the south-west corner of the Site.
The 2012 DA[4] was granted in relation to three lots – Lot 6 Shale Road and Lots 3 and 50 Kiln Road, Cardup.
[4] Exhibit 3, Respondent's s 24 Bundle of Documents in DR 223 of 2022 (Respondent's Bundle), pages 136 – 144.
The certificate of title for the Site[5] indicates that those three lots were amalgamated and new titles issued in August 2016. The Site (Lot 31) now contains parts of each of the previous three lots, as do Lots 32 and 33.
[5] Respondent's Bundle, page 574.
During the hearing, Mr Andrew Trosic, director of development services for the respondent, prepared a helpful plan[6], which we attach to these Reasons as Annexure A. It shows the relationship between the original three lots and the existing three lots.
[6] Exhibit 19.
We repeat, to avoid any doubt, that the application for a DA, the subject of one of these two proceedings, is limited on its face to the Site – Lot 31 – only. On one view the application therefore reduces the area of land over which approval is sought, compared to the 2012 DA. This is a matter to which we will return in Issue No. 1 below.
Apparent on Mr Trosic's plan are eight shapes which are more or less circular and all of which are contained within the Site. Each of them is annotated as a 'Stage' – Stage 1, Stage 2, Stage 3 et cetera.
Each of those eight stages are identified on the first of the two approved plans attached to the 2012 DA.[7] As at the expiry date, only three stages had been worked. They are what is shown on the approved plans to the 2012 DA as Stages 1, 2 and 4.
[7] The first three of those stages are also identified on the approved plan to the 2006 DA.
The evidence at the hearing of Ms Epworth, an expert hydrologist called by the applicant, was that, pursuant to a process undertaken through the development of the Water Management Plan pursuant to condition 9 of the 2012 DA (WMP), the original Stages 3 and 4 were swapped so that the original Stage 3 shown on the approved plans to the 2012 DA has not been worked and is now known as Stage 4 while the original Stage 4 has been worked and is now known as Stage 3.
In any event, only three Stages of the anticipated eight Stages, constituting approximately one–third (being the southern third) of Lot 31, has been worked to date.
The (joint) application proceeds on the basis that if a further five‑year term is granted, extraction will not proceed beyond the existing three Stages. That is, what is now Stages 4 – 8 will remain unworked at the end of the extended five‑year period.

Previous approvals

Previous development approvals

As noted above, a DA was granted on 20 October 2006 for the purposes of 'Extractive Industry – Shale'. The DA describes the land the subject of the approval as 'Lot 6 Shale Road, Cardup'.
The approval granted is stated to be 'in accordance with an application dated 3 October 2003 and additional information received in July, September and October 2004'. None of those documents have been provided to us and we assume that they no longer exist.
Approval was granted subject to 48 conditions, the most relevant of which is condition 5, which limited approval for the extractive industry use to five years.
Interestingly, conditions 7 – 10 prevent the commencement of new stages until the respondent is satisfied that certain matters have occurred. So, for example, condition 8 of the 2006 DA prohibits commencement of Stage 3 until the respondent has confirmed in writing that Stage 1 has been rehabilitated and revegetated.
In our view, there is much to recommend such an approach and it is a matter of some regret that such an approach was not followed in the 2012 DA.
In the ordinary course, development approvals for progressive land uses such as quarries and landfills, are and should be granted over the entire proposed site and subject to conditions which, rather than impose time limits, anticipate a staged approach but prohibit the commencement of new stages unless and until new management plans are prepared by the applicant and approved by the responsible authority.
We have not adopted such an approach in this case for a variety of reasons including the nature of the application, which is the subject of further discussion below under the heading 'Issue No. 1'. In addition, the evidence before us is that the applicant has, for some time, foreshadowed an application for an entirely new DA to allow it to commence Stages 4 and beyond. In such circumstances, there is little to be gained by adopting our preferred course, even if we could be certain it was open to us.
Returning to the chronology, as has been noted several times now, a further DA was issued in 2012.
As also previously noted, the 2012 DA was expressed to apply to Lots 3 and 50 Kiln Road in addition to Lot 6 Shale Road, Cardup. The 2012 DA authorises 'Industry – Extractive' and is said to allow development 'as per application form (sic) dated 17 January 2011 and accompanying plans'. It was subject to 24 conditions.
Condition 1 originally stated that the approval 'expires on 31 December 2017'. That condition was the subject of an application for review to the Tribunal. The respondent was invited, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to reconsider its decision. On 8 October 2012, the respondent determined to advise the Tribunal that the respondent agreed to modify condition 1 of the 2012 DA 'to extend the term of the Planning Approval to 31 December 2022'.[8]
[8] Respondent's Bundle, pages 145 – 146.
The remaining conditions of the 2012 DA concern operating hours (condition 2); the provision of annual compliance reports (conditions 3 and 4); the preparation of management plans for: dust (condition 5); noise (condition 6); stakeholder engagement (conditions 7 and 8); water resources (condition 9); traffic (condition 11); and visual impact (condition 20); and 'mine closure' (condition 24).
Each of those plans have since been developed, approved and implemented.[9] Mr Trosic's evidence was that there is nothing before the respondent to indicate any non-compliance with those plans in the past 10 years of operations.[10]

Previous EILs

[9] Save for the obvious exception of the Mine Closure Plan, the time for which has not yet come.

[10] ts 115, 29 March 2023.

An EIL was first granted by the respondent on 22 December 2006. Like the 2006 DA, it concerned only Lot 6, Shale Road. It was issued for a period of five years, expiring on 20 October 2011.[11]
[11] Respondent's Bundle, pages 74 – 76.
In December 2010 the applicant sought an EIL for the extraction of shale and clay on Lot 6 Shale Road and Lots 3 and 50 Kiln Road, Cardup (Lots 6, 3 and 50). The respondent granted an EIL on 11 June 2012.[12] The conditions and expiry dates were subject to an application for review to the Tribunal which, by consent, made orders that the EIL operate for two five-year periods, commencing 1 January 2013 and expiring on 1 January 2023.[13]
[12] Respondent's Bundle, page 147.
[13] Respondent’s Bundle, pages 148 – 149.
For reasons that remain unclear on 8 March 2018 (effectively at the end of the first five-year period) the respondent granted an EIL for the extraction of hard rock and shale on Lots 6, 3 and 50 for the period ending 31 December 2018.[14]
[14] Exhibit 13, Applicant’s Bundle of Documents in DR 24 of 2023, 17 March 2023, pages 1 – 2. See, also, the Applicants Statement of Issues, Facts and Contentions in DR 24 of 2023, 17 March 2023, para 14.
Most recently, on 20 February 2019, the respondent granted an EIL for the period ending 31 December 2022 for the extraction of hard rock, shale and clay on Lots 31, 32 and 33 Kiln Road, Cardup.[15]
[15] Applicant’s Bundle of Documents in DR 24 of 2023, 17 March 2023, pages 3 – 5.

Joint application for DA and EIL

As noted above, the applicant applied for a further DA and a further EIL on 18 August 2022.
On that date an email was sent on behalf of the applicant by Ms Sharee Rasmussen of Land Insights, to Mr Trosic of the respondent.[16]
[16] Respondent's Bundle, page 445.
Relevantly, that email attached a cover letter and two application forms, one for a DA and one for an EIL, both of which had been completed. The cover email said that the email 'attached an application to amend Development Approval (OC12/7499) and an application for the renewal of Extractive Industry Licence (OC19/3414) relating to the 'Shale Pit' located at Lot 31 Kiln Road, Cardup. …'
Given the significance of the letter's text to the positions of the parties, it is necessary to set it out in almost its entirety:[17]
[17] Respondent's Bundle, pages 447 – 448.
Land Insights act for Bristile Holdings Pty Ltd (Austral Bricks WA Pty Ltd) and lodge this application on their behalf.
This application seeks to amend or delete Condition 1 of the existing Development Approval (DA) relating to the "Shale Pit" located at Lot 31 Kiln Road, Cardup (reference OC12/7499). This condition restricts the timeframe of the approval to 31 December 2022. In commencing the extraction on the site following issue of the current approval, the Shire approved several management plans focussing on Stages 1-3. It is within these three stages that extraction has occurred to date.
As you may be aware, the original application foreshadowed extraction over 8 stages, encompassing the entirety of what is now Lot 31. At the time the current approval was issued Austral Bricks considered that they would complete Stages 1-3 within a 10-year timeframe and be ready to progress into subsequent stages. A fresh application, which focussed on management of subsequent stages, was intended to be lodged at this time.
Due to a range of factors, Austral Bricks has not finalised extraction within the approved Stages 1-3, and there remains up to five years (at current extraction rates) of resource within this area. As such, Austral Bricks needs to continue its current Stage 1-3 operations at this site for the next five years to maintain essential supplies of brick clay for the WA market.
…
The application to amend the DA is made pursuant to Clause 77(1)(b) of the Deemed Provisions contained within Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015. We also reference the Shire's Local Planning Policy 1.3 which allows for an application to amend conditions of approval providing the use "remains, in substance, the same". Austral Bricks will continue to operate subject to the current Approval conditions.
With this in mind we request Condition 1 of the DA "This approval expires 31 December 2022" be amended by replacing "2022" with "2027", or alternatively for the Shire delete the condition altogether.[18]
In requesting this amendment we note there has been no change in circumstances, nor has the operations by Austral Bricks changed. All previously submitted information about the proposal applies to the requested extension for the period of operation requested. Austral commits to abide by the existing Approval conditions.
Considering there has been no change since the last decision, we expect the Shire's assessment will result in a decision consistent with the previous Approval.
In addition, we are also requesting that the Extractive Industry Licence is renewed for the same time period (for a 5 year period until 31 December 2027) to align with the request for the DA amendment. The Licence renewal will also apply to the same operation area (Stages 1 to 3).
…
[18] As noted above, the applicant did not pursue the 'perennial' option at the hearing.
The DA application form identifies the proposed development as both 'Works and Use' which is further described as 'Extractive Industry – Clay extraction and associated works and activity'. The form does not provide for the applicant to identify the relevant clause or otherwise of the local planning scheme under which approval is sought.
Following the lodgement of the application, a meeting occurred between the parties on 14 September 2022. That was followed by a letter from Ms Rasmussen the following day,[19] which says that at the meeting the respondent 'expressed a preference for a further independent audit (similar to the one undertaken in 2017)'. The applicant resisted such an audit and, instead, attached a 'current additional technical report' being a document titled Clay Extraction Management Plan, dated September 2022 (CEMP).[20]
[19] Respondent's Bundle, pages 454 – 455.
[20] Respondent's Bundle, pages 456 – 632.
Section 1.1 of the CEMP says:
All of the existing management plans and operational plans [i.e. those prepared pursuant to the 2012 DA] have been attached to the application as they relate to Stages 1 to 3. An updated Weed Management Plan [also attached] … has been prepared in response to the most recent Shire audit and an updated Traffic Impact Statement [also attached] … has been prepared to reflect the updated truck numbers. A review of the current State Local Government Policies and Guidelines is also provided in this application. The application raises no further planning or management issues and is consistent with current Shire Policies.

Ms Rasmussen prepared a witness statement filed 20 March 2023[21] and gave evidence at the hearing. In that evidence, she explained that the purpose of the CEMP was to both describe the existing operations as well as to detail the results of an extensive risk management assessment which had been carried out to ensure that the proposed continuation of the extractive industries operation on the Site for a further five years was in accordance with the existing regulatory regime.[22]
[21] Exhibit 16, Statement of Sharee Adelle Rasmussen undated but filed 20 March 2023.
[22] ts 159 – 162, 29 March 2023.
Consistent with the above statement in section 1.1 of the CEMP her evidence was that the current application is consistent with the existing planning framework. She was not challenged on that evidence and there was nothing raised in any of the material relied upon by the respondent to negative or refute that opinion.
The CEMP includes 11 appendices: Appendix A to Appendix K. Appendices D – K consist of the various management and operational plans referred to above. Appendices A and C consist of the two application forms and the certificate of title respectively. Appendix B is described in the CEMP Table of Contents simply as 'Plans' but no such plans were included with the version initially forwarded to the respondent on 15 September 2022 as a result of an inadvertent omission.
That omission was identified and rectified in an email exchange of 16 ‑ 20 September 2022 by which a single A4 document titled 'Extraction Plan, Lot 31 Kiln Road, Cardup' (Plan B) was forwarded to the respondent.[23] We attach a copy of Plan B as Annexure B to these Reasons.
[23] Respondent's Bundle, page 647.
Plan B shows the relevant 'Site Boundary' as the boundary to Lot 31 Kiln Road, Cardup and identifies, by reference to a 'Resource Boundary (Approx)' that bisects Lot 31 from north to south, that the resource consists of a 'pastel clay resource' on the western side of the lot and a 'greenstone resource' on the eastern side. It also shows the extraction area in the southern third of the Site with Stages 1 and 2 contained within the pastel clay resource and Stage 3 largely contained within the greenstone resource.
By email of 16 November 2022 to Ms Rasmussen, the respondent's officers indicated that, in their view, Plan B constituted an amendment of the 2012 DA by limiting the geographical area to which it relates.
That is, the respondent's officers took the view that the 2012 DA applied to the whole of Lot 31 or, perhaps more accurately, to the area of land covered by Stages 1 – 8, whereas, in their view, Plan B confirmed that the current application was limited to Stages 1 – 3 only. In the officer's view, that amounted to an amendment of the 2012 DA, rather than simply an amendment to the time limit in Condition 1.
As is clear from the quoted cover letter (above at para 42), the application was lodged, quite explicitly, pursuant to cl 77(1)(b) of the Deemed Provisions. That clause provides that an owner of land may apply, in relation to an existing DA, 'to amend or delete any condition to which the approval is subject'.
The respondent's officers imply in their email that the application was, in fact, an application pursuant to cl 77(1)(c). That clause allows an application 'to amend an aspect of the development approved which, if amended, would not substantially change the development approved'.
The officers took the view that the application sought an amendment to the geographical area covered by the approval (being a change from Stages 1 – 8 to Stages 1 – 3 only) which was 'substantial' and therefore fell outside the bounds permitted by cl 77(1)(c).
That position was adopted by the respondent's Council in its meeting in December 2012. It was further maintained by Mr Wittkuhn, who appeared for the respondent at the hearing. It is the principal basis upon which the application was refused, and we will return to it in more detail below (as Issue No. 1).
Ms Rasmussen replied by email of 17 November 2022 in the following terms:[24]
As is stated in our letter to the Shire dated 18 August 2022, the application is to amend the DA pursuant to Clause 77(1)(b) of the Deemed Provisions … Clause 77(1)(b) states an application can be made "to amend or delete any condition to which the approval is subject". We have not submitted an application under Clause 77(1)(c) of the Deemed Provisions which you have implied in your email below. In addition, we have discussed this with the Shire previously and our position remains that a change to the date does not represent a substantial change to the proposal. Your query about staging is not relevant either because the approved plan remains the same and management plans relate to the initial stages (1-3) which are still in progress.
As such, we do not agree that the application should be treated as a new application and we will not be sending a cover letter to this effect. I confirm that we would like to proceed with our original request to amend Condition 1 pursuant to Clause 77(1)(b) of the Deemed Provisions[.]
[24] Respondent's Bundle, pages 648 – 649.
As noted above, the Council of the respondent resolved to refuse the development approval application on 12 December 2022. Its reasons for that decision are as follows:[25]
[25] Respondent's Bundle, page 687.
(a)The proposed amendment would substantially change the development approved and cannot be determined pursuant to Clause 77 of the Planning and Development (Local Planning Schemes) Regulations 2015;
(b)Even if (a) was legally incorrect, the application materials have only presented a justification for continued extraction in Stages 1 – 3, not in Stages 4 – 8, so the approval cannot be supported based on the 2012 decision that dealt with the different development extent;
(c)Further to (b), extending the duration of approval for Stages 1 – 8 would be inconsistent with the applicant's stated intent to only extract from Stages 1 – 3 within the five year extension period sought by the applicant.
(d)The application has not provided sufficient up-to-date information in order to assess relevant planning considerations pertaining to the following:
(i)Whether the Community Consultation Framework and Community Consultation Group is proposed to operate as part of the proposed extent of development;
(ii)How dust, noise and other amenity impacts may be managed to account for the proposed changes in the extent of development;
(iii)How visual and rehabilitation management approaches may require adjustment to reflect the proposed changes to the extent of development;
(iv)How mine closure planning may be required to adjust to account for the proposed changes to the extent of development;
(v)How traffic will account for the accelerated decline in road pavement life on Shire managed road assets.
That decision was formally communicated to the applicant by letter dated 19 December 2022. Prior to that formal notification the applicant applied to the Tribunal for review of that decision.
By letter to the President of the Tribunal dated 23 December 2022, the Minister for Planning:
(a)confirmed her view that the application had both 'State and regional importance';
(b)advised that she had 'determined to call in the application'; and
(c)directed the Tribunal 'to hear the application but, without determining it, to refer it with recommendations for me for determination'.
By an undated notice received by the applicant by email on 6 February 2023 the respondent refused the EIL application on the basis that a DA 'has not been obtained'. An application for review was lodged on 11 February 2023.

The statutory and policy framework

Rather remarkably neither party's Statement of Issues, Facts and Contentions (SIFCs),[26] addressed the relevant legal and policy framework within which the decision is to be made.
[26] Exhibit 1, Respondent's Amended Statement of Issues, Facts and Contentions dated 15 March 2023 (Respondent's SIFC) and Exhibit 8, Applicant's Statement of Issues, Facts and Contentions in Reply dated 23 February 2023.
Perhaps more remarkably, neither did the respondent's opening submissions.
In our view, both the decision-maker's SIFC and its opening address at any hearing ought to include an objective identification and, where appropriate, discussion of the statutory and policy provisions relevant to the decision to be made. In a hearing, such objective identification and discussion should occur before any (opening) submissions are then made in defence of the decision‑maker's position.
Such an approach is necessary in order for the decision-maker to fulfil its obligations under s 30 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides that in a review proceeding 'the best endeavours of the decision-maker are to be used to assist the Tribunal to make its decision on the review'.
In the event, we were assisted by both section 5 of the CEMP, which contains an exhaustive review of the relevant statutory and planning framework, and the witness statements of both Mr Trosic and that of Ms Rasmussen. Those documents identify more than 20 relevant documents. In our view, it is necessary only to identify the relevant provisions of the following documents.

Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 (TPS2)

The Site (Lot 31) is the subject of three separate zones which reflect its previous lot boundaries:[27]
(a)The area of previous Lot 6 is zoned Special Use: ESC/LF (Extraction/Storage Shale and Clay/Landfill).
(b)The area of previous Lot 50 is zoned Special Use: ESC (Extraction/Storage Shale and Clay).
(c)The area of previous Lot 3 is zoned Rural.
[27] Scheme map, Applicant's Bundle, page 13.
'Industry-Extractive' is an 'AA' use in the Rural zone which, by cl 3.2.2, means that the use may be permitted by the respondent.
Clause 5.11.2 concerns special use zones. It says, in effect, that Appendix 2 of TPS2 establishes the relevant provisions for such zones. The permitted uses for each of the relevant special use zones are as follows:
(a)Special Use: ESC – 'Extraction and storage of Shale and Clay and manufacture, storage and distribution of Masonry and related products'.
(b)Special Use: ESC/LF – 'Extraction and processing of hard rock and clay. Waste disposal, composting and associated landfill activities'.
It is clear, therefore, that the continued operation of an extractive industry land use on Lot 31 is consistent with the relevant current zoning and the respondent did not submit otherwise. Indeed, Mr Wittkuhn submitted that the respondent 'obviously doesn't say that extractive industry is an unsuitable use for this site'.[28]

Shire of Serpentine-Jarrahdale draft Local Planning Scheme No. 3 (draft Scheme)

[28] ts 46, 28 March 2023.

Draft Scheme LPS 3 was endorsed by the Council of the respondent in June 2020.[29]
[29] Exhibit 10, Applicant's Supplementary Bundle of Documents 28 March 2023 (Applicant's Supplementary Bundle), pages 205 – 306.
It was considered by the Statutory Planning Committee of the WAPC on 14 March 2023. An email from the Department dated 21 March 2023 which was included in the Applicant's Supplementary Bundle of Documents advised that it is 'likely' that the Minister will require modifications to the draft Scheme before it is finally approved and gazetted and that the earliest that process would be completed is, in effect, by the end of June 2023.[30]
[30] Exhibit 10, Applicant's Supplementary Bundle, page 201.
Given its very advanced status, the draft Scheme is something to which regard must be had pursuant to cl 67(2)(b) of the Deemed Provisions.
The relevant draft Scheme map (map 2 of 7)[31] shows the Site to be zoned Rural. The Zoning Table to the draft Scheme gives the land use 'industry – extractive' as an 'A' use in the Rural zone. Clause 18 defines an 'A' use as one which is not permitted without the approval of the respondent after giving notice in accordance with cl 64 of the Deemed Provisions.
[31] Applicant's Supplementary Bundle, page 301.
The draft Scheme's map also indicates, although it is not entirely clear, that the Site is within Special Control Area 5. Clause 53 states that the 'purpose, objectives and additional provisions that apply to each special control area is set out in Schedule 3' and that relevant separation distances for different industries are set out in Schedule 6.
The clay and shale extractive industry at the Site is identified in Schedule 6 which gives a separation distance of 1,000 metres. There are no sensitive receptors contained within (about) 1,000 metres of the Site[32] and the issue was not the subject of questioning or submissions at the hearing.
[32] Exhibit 17, Witness statement of Andrew Antre Trosic dated 20 March 2023 (Trosic Witness Statement), para 94.
Schedule 3 states that the purpose of Special Control Area 5 is 'extractive industries' and the objectives are as follows:
1. To identify the location of extractive industries.
2. To protect the operation of extractive industries.
3.Designate separation distances to properties with extractive industries as contained in Schedule 6.
Schedule 3 also contains additional provisions for extractive industries as follows:
1.Development approval shall be required for all development within SCA5.
2.Development approval may be subject to conditions in regards to noise attenuation, siting and orientation of buildings.
On the basis of the above we are satisfied that the continued operation of the Site as an extractive industry is contemplated by the draft Scheme and there is nothing within the draft Scheme which materially changes the planning regime within which the previous approvals were granted.

Shire of Serpentine-Jarrahdale Local Planning Strategy (Planning Strategy)

The Planning Strategy is dated February 2022[33] and was endorsed by the Western Australian Planning Commission (WAPC) on 18 March 2022.[34] We must therefore give it 'due regard'.[35] It identifies the Site on the Strategy Map as 'Rural Land'.[36]
[33] Applicant's Supplementary Bundle, pages 13 – 200.
[34] Applicant's Supplementary Bundle, page 14.
[35] Clause 67(2)(fa) of the Deemed Provisions.
[36] Applicant's Supplementary Bundle, page 11.
The Site is also shown, on Fig. 19, as a 'Future Resource Extraction Area'. The 'Future' element of that title appears to be an error and we note that Fig. 19 also identifies the area immediately to the east of the Site as Extractive Industry Licence, which may also be incorrect.
Section 5.4.4 is headed Basic Raw Materials, Industrial and Rural Land Use Buffers, the objectives of which include: the protection of important basic raw materials and mineral resources; the preservation of amenity of sensitive land uses and the protection of environmental values from any adverse off-site impacts of resource extraction; and the mitigation and appropriate management of any potential impacts of development to air quality.
The relevant strategies to section 5.4.4 include: the recognition of the economic importance of protecting basic raw materials located in close proximity to developing urban areas; the prevention of development of incompatible land uses in close proximity to basic raw materials; and ensuring that development which may result in negative offsite impacts is appropriately managed.
Section 3.3 of the Strategy addresses rural land and focusses on the protection of agriculture. Extractive industries is not mentioned under this heading.
We note in this regard that the parties proceeded upon an apparent agreement that the land will be returned to its agricultural use upon cessation of quarrying activities.
Accordingly, we are satisfied that there is nothing within the Strategy that is inconsistent with the ongoing use of the Site for extractive industries, subject to the protection of environmental values, which will be addressed below under the heading 'Issues No. 2 and No. 4'.

State Planning Policy 2.4 – Planning for Basic Raw Materials (SPP 2.4)

SPP 2.4 was gazetted in July 2021.[37] We must therefore give it 'due regard'.[38]
[37] Exhibit 9, Applicant's Bundle of Documents, 23 February 2023, pages 1 – 8.
[38] PD Act, s 241(1)(a); cl 67(2)(c) of the Deemed Provisions.
The Policy Intent of SPP 2.4 is: to ensure that basic raw materials (BRM) and extractive industry matters are considered during planning and development decision-making; and to facilitate the responsible extraction and use of the States BRM resources.
Section 3 of SPP 2.4 states that BRM are a 'finite resource and their efficient use is required to ensure an ongoing supply to support economic development in Western Australia'. Section 3.1 recognises certain site categories including Significant Geological Supplies (SGS) which are identified as 'the highest priority extraction areas for BRM. SGS are BRM identified by the [relevant department] that represent strategic, long-term supplies of BRM requiring protection'.
Section 4 provides that SPP 2.4 applies to applications for development approvals where the proposal is 'over, or adjacent to, sites identified to contain BRM resources'.
Section 4.1 provides for the mapping of BRM resources. Ms Moharich, who appeared for the applicant at the hearing submitted, without demur by Mr Wittkuhn, that previous versions of SPP 2.4 provided maps of BRM within the policy itself. The current version does not. Section 5.3 of the CEMP includes, at Fig. 4, an extract of the relevant departmental mapping which identifies, as an SGS, the resource contained within, and occupying the vast majority of, the Site. There was no demur from the respondent as to the accuracy of Fig 4.
Section 5 of SPP 2.4 provides that the policy objectives are to, relevantly:
(a)ensure BRM and its regional importance is considered at the earliest stages of the planning process;
(b)protect BRM in SGS areas … by avoiding encroachment from incompatible land uses;
(c)ensure BRM resources are used efficiently in land use planning and development;
(d)identify BRM extraction opportunities through sequential land use without compromising the final intended land use; and
(e)ensure the extraction of BRM avoids, minimises or mitigates any adverse impacts on the community, water resources and biodiversity values.
Section 6 sets out the relevant policy measures.
Section 6.1 is concerned with higher order strategic planning instruments. Section 6.1(d) provides that where appropriate such documents should:
… identify opportunities for the extraction of BRM from SGS areas followed by sequential urban or industrial development, where appropriate. There is a presumption against region scheme amendments until it is demonstrated how sequential land use will be achieved where a BRM resource has been identified.
Section 6.2 is concerned with local planning instruments. It provides that: (1) where appropriate, such documents should identify SGS areas and their separation distances and should establish transitional land uses and interface areas to protect known SGS areas from encroachment by incompatible land uses and to avoid any health risks or amenity implications for adjacent land uses – section 6.2(a); and (2) such instruments should 'not compromise the extraction of resources on SGS areas' – section 6.2(b).
Section 6.3 provides that subdivision and development applications should demonstrate that land uses are compatible by avoiding sensitive land uses within SGS areas – section 6.3(a).
Section 6.5 provides that applications for development approval should be supported by a management plan that demonstrates various matters including the identification of environmental values and those requiring protection (section 6.5(c)) and the 'sequential land use and a staging plan for the rehabilitation of the site for its intended long-term use' (section 6.5(f)).

In our view, it is clear that SPP 2.4 seeks to ensure the protection of SGS resources to allow their exploitation.
It also provides for the appropriate protection of surrounding land uses and, where relevant, environmental impacts. That latter issue is addressed in more detail in relation to this application below under the heading 'Issues No. 2 and No.4'. However, in our view SPP 2.4 is quite clear that, all other things being equal, planning decisions ought to prioritise the exploitation of SGS resources.

State Planning Policy 2.9 – Water Resources (SPP 2.9)

SPP 2.9 was gazetted on 19 December 2006.[39]
[39] Exhibit 18. Again, s 241(1)(a) of the PD Act and cl 67(2)(c) of the Deemed Provisions require that we give it 'due regard'.
It would appear to be currently under review; section 5.5 of the CEMP Plan[40] states that a draft SPP 2.9 was prepared by the WAPC in 2021. That document, if it is available publicly, was not put before us.
[40] Respondent's Bundle, page 518.
The objectives of SPP 2.9 are to:
1.protect, conserve and enhance water resources that are identified as having significant economic, social, cultural and/or environmental values;
2.assist in ensuring the availability of suitable water resources to maintain essential requirements for human and all other biological life with attention to maintaining or improving the quality and quantity of water resources; and
3.promote and assist in the management and sustainable use of water resources.
Section 5 of the policy states:
Planning should contribute to the protection and wise management of water resources by ensuring local and regional planning strategies, structure plans, schemes, subdivisions, strata subdivision and development applications adopt the following measures.
5.1General Measures:
(i)Protect significant environmental, recreational and cultural values of water resources.
(ii)Aim to prevent or, where appropriate, ameliorate the following potential impacts:
•any adverse effects on water quality and quantity and, as a minimum, proposed development should aim to maintain water quality and ensure water quantity is compatible with the receiving waters;
…
•increased erosion, sedimentation and turbidity, particularly at the construction phase of development;
•any potential adverse effects on environmental water requirements and, as a minimum, proposed development should aim to maintain natural flow regimes and variability;
…
(iii)Promote improved outcomes such as:
•environmental repair and rehabilitation of the water resource;
•improved water quality;
…
•restoration of natural flow regimes and variability; and
…
5.2Surface and Groundwater Resources
(i)Recognise the hydrological importance of groundwater and surface catchments with regards to water management and the associated value of catchment planning on a regional, district and local scale.
(ii)Protect, manage, conserve and enhance surface and groundwater catchments and recharge areas supporting significant ecological features or having identified environmental values, by ensuring, where possible, appropriate management or limiting inappropriate land use/s to maintain water quality and quantity for existing and future environmental and human uses.
(iii)Ensure the availability of water resources is compatible with the future requirements of the proposed and surrounding land use through an assessment of quantity and quality requirements for both the development and the environment.
(iv)…
5.4Total Water Cycle Management
(i)…
(ii)Seek to achieve no net difference in water quality and quantity, unless necessary to meet identified environmental water requirements, such that post‑development water quality and quantity conditions are equal to or better than pre-development conditions.
In our view, SPP 2.9 provides for a response to the potential impact of development on water resources that is proportionate to the significance of the water resource concerned with a particular focus on those resources considered 'significant'.
So, the first of the policy objectives is framed in terms which limit its scope to those resources that are identified as having 'significant economic, social, cultural and/or environmental values'. So too, cl 5.1(i) provides for the protection of 'significant environmental, recreational and cultural values of water resources'.[41]
[41] Underlining added.
Much of the language of SPP 2.9 is properly described as aspirational. So, for example cl 5.1(ii) and cl 5.1(iii) require that decision-makers 'aim to prevent or, where appropriate, ameliorate' certain potential impacts and cl 5.1(iii) seeks the promotion of certain improved outcomes. Equally, cl 5.4(ii) requires decision-makers to 'Seek to achieve no net difference in water quality and quantity …'.
Section 5.2 speaks of the need to provide for the future requirements of the proposed and surrounding land uses.[42] It will be necessary to return to this issue below in relation to Issues No. 2 and No. 4.

Shire of Serpentine-Jarrahdale - Local Planning Policy 4.10 - Extractive Industries (Including Extraction of Mineral Sand and Other Minerals) (LPP 4.10)[43]

[42] Also, the first dot point to cl 5.1(ii).

[43] Respondent's Bundle, pages 967 – 986. We are satisfied that LPP 4.10 is a 'local planning policy for the scheme area' pursuant to cl 67(2)(g) of the Deemed Provisions and we must, therefore, give it 'due regard'.

LPP 4.10's purpose is to 'guide the assessment and comment on extractive industries'. It is stated to apply both in relation to applications under the planning regime as well as under the relevant local laws. Its objectives include the following:
·Extractive industries do not adversely affect the environment or amenity of the locality during or after extraction.
·Extractive industries are located in the most appropriate areas of the Shire.
·Extractive industries are sited and operated to meet the varied needs of the community.
·Extraction occurs where the available haulage routes and road hierarchy are satisfactory[.]
LPP 4.10's first three 'policies' are concerned with the information that must form part of, and accompany, an application. At the hearing, the respondent took no real issue in this regard and it is therefore unnecessary to quote any of the (extensive) provisions here.
The fifth of the 'policies' provides that five 'elements' (amenity, environmental, buffers, visual impacts and transport) will be considered in determining the suitability of an extractive industry proposal. In each case, what is said to constitute 'acceptable development' is stated as well as certain 'performance criteria' which are to be applied should the acceptable development criteria not be met. We were not taken to any of these matters by either party, although (more broadly) the issues of surface water and transport were both issues that were the subject of evidence and submissions.
Performance Criteria 1.2.1 (Environment) includes the following:
Development is located so as to minimise impact upon … surface drainage and surface water quality including discharge of sediment[.]
Performance Criteria 1.5 (Transport) provides as follows:
Development satisfactorily addresses the following issues:
…
·Conditions and nature of roads to be used;
…
·Access points to the operation site[.]
The sixth 'policy' is concerned with requirements specific to the EIL regime. Clause 6.1 provides that an initial EIL is to be limited to a duration of 1 year and, where the EIL is being renewed, any further duration will be determined through a system of compliance and audit. It is unnecessary to detail the system here given that under the 2012 DA, annual compliance monitoring and audit reports have been provided to the respondent and, in his evidence, Mr Trosic confirmed that there was no issue of non-compliance or other concerns that had been raised through that process.

Shire of Serpentine-Jarrahdale – Extractive Industries Local Law (Local Law)

The Local Law was made on 20 December 1999.[44]
[44] Exhibit 9, Applicant's Bundle of Documents, 23 February 2023, pages 35 – 55.
Clause 1.2(1)(a) provides that the Local Law applies and has force and effect throughout the whole of the municipal district and applies to 'every excavation whether commenced prior to or following the coming into operation of this local law'.
Clause 2.1 provides that a person must not carry out an extractive industry unless that person is the holder of a valid and current licence and is otherwise in compliance with the terms and conditions set out in that licence.
Clause 2.3(1) sets out in considerable detail what is required to be included in an application for the issue of a licence.
Clause 3.1(1) provides that the local government 'may refuse to consider an application for a licence that does not comply with the requirements of Clause 2.3,[45] and in any event shall refuse an application for a licence where planning approval for an extractive industry use of the land has not first been obtained'.
[45] We note that no reference is made here to a decision as to renewal under clause 4.3.
Clause 4.3(1) sets out five matters that must be included in an application to renew a licence. Clause 4.3(1)(e) provides that what must be included are those things referred to in cl 2.3 and cl 3.1. However, cl 4.3(2) provides that the local government may waive any of the requirements specified in cl 4.3(1)(e).
In his opening submissions, Mr Wittkuhn referred to various alleged non‑compliances with the provisions of cl 2.3. However, in her opening, Ms Moharich noted the distinction between cl 2.3 and cl 4.3, emphasised cl 4.3(1)(e) and submitted that, while there had not been a formal waiver by the respondent in relation to such matters, neither had there been a request for further information in relation to the application under the Local Law. In his closing submissions, Mr Wittkuhn acknowledged the difference between cl 2.3 and cl 4.3 and expressly stated that the issue was not pressed by the respondent.[46]
[46] ts 310, 31 March 2023.
In her opening submissions, Ms Moharich submitted that, despite the very clear words of cl 3.1, we retain a discretion to grant an EIL notwithstanding that there is not, unless and until the Minister grants it, a DA in place. That submission was made despite her expressly disavowing any challenge to the validity of the Local Law. In closing, however, Ms Moharich accepted that it was, at least, appropriate for the EIL not to be granted unless and until development approval has been granted.[47] In our view, the terms of cl 3.1 go further; it is not only appropriate, it is necessary for a DA to be obtained before an EIL can be granted.
[47] ts 309, 31 March 2023.

Issue No. 1

Issue No 1, as framed by the applicant,[48] is:
(a)was the development application the refusal of which gives rise to these proceedings properly made?
(b)if the answer to that question is 'no' what power does the Minister have to approve the application?
[48] The respondent framed the issue as follows: Is it the case that the only decision legally open to the Minister, is to dismiss the application for review, on the ground that the application to the first-instance decision-maker (Shire) was not a valid application to amend an existing development application approval, and the Minister has no greater power than the first-instance decision-maker to approve the application. Prior to the making of closing submissions we indicated that we would adopt the applicant's wording of the issue, to which Mr Wittkuhn raised no objection.
In our view, and for the following reasons, the answer to the first question posed is 'yes'; the application in question was properly made and clearly sought approval for the extension of the time limit contained in Condition 1, by the amendment of that condition.
The question requires the construction of the application, as constituted by the cover letter, the relevant form and any accompanying material, which in this case includes the CEMP (which includes Plan B).
In that regard, the subjective intention of the applicant is not the question. Neither is the impression actually conveyed to or the attitude actually taken by the respondent. Rather, the question is what the materials forming the application 'should be regarded as conveying to those who were or might be supposed to be concerned to ascertain the nature of the application, either for the purpose of dealing with it or objecting to it.'[49]
[49] Marock Pty Ltd v Billjoy Pty Ltd [1981] VR 413, 417. See also MEPC Australia Ltd & Anor v Westfield Ltd [1998] QCA 345; 100 LGERA 204.
As noted above at para [43], the application form is almost entirely useless for the purpose.
However, the cover letter of 18 August 2022 is, in our view, crystal clear.
It states, in the second paragraph, that approval is sought 'to amend or delete Condition 1 of the existing Development Approval (DA) relating to the "Shale Pit" at Lot 31 Kiln Road, Cardup'.
That is clearly an application made pursuant to the power to seek amendment of a condition, which power is contained in cl 77(1)(b) of the Deemed Provisions.[50] That sub-clause provides that an owner of land may request, in relation to an existing approval, the local government 'to amend or delete any condition to which the approval is subject'.
[50] Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
Should there be any doubt as to the power under which the application is made, the cover letter states expressly in the fifth paragraph cited above at para [43] that the 'application to amend the DA is made pursuant to cl 77(1)(b) of the Deemed Provisions …'
The respondent's case is that the 2012 DA provided approval for all eight Stages whereas the current application seeks approval for only Stages 1 – 3. The respondent says that both Plan B and certain passages in the cover letter and the CEMP indicate an intention to limit the present application to Stages 1 – 3.
That is, the respondent's case seeks to compare the geographic extent of the approval granted by the 2012 DA and the geographic scope of the approval sought by the applicant in this case; it says that the application would, if granted, dramatically reduce the geographic area over which approval is granted.
We agree that the 2012 DA grants approval for the whole of Stages 1 – 8.[51]
[51] Respondent's Bundle, pages 472 – 473.
But it does not do so in isolation. It does so subject to conditions which include a time-limit of 10 years and which include the obligation to extract the resource in accordance with management and operational plans which the respondent has approved. Several of those plans (which, we repeat, the respondent has approved), are limited in their scope to Stages 1 – 3.
The cover letter sets out that background and explains that the extension of time for a further five years is sought to allow the completion of Stages 1 – 3, after which a further application will be sought.
A similar purpose is achieved by section 2.3 of the CEMP.[52] After identifying different aspects of the operation, it notes that those aspects can be seen on Plan B. It then states:
The current [DA] is for Stages 1 to 8 … Although the approval is for all stages identified on the site, a majority of the management plans apply only to Stages 1 to 3.
Excavation within Stage 1 commenced in approximately 2008. Since then, excavation has continued into Stage 2 and partly into Stage 3. There is still substantial resource available within Stages 1 to 3, hence the requirement for this application for a renewal of the existing approvals for these three stages.
It is anticipated that the life of the operation is beyond 10 years (into Stages 4 to 8) so another renewal application will be expected in the future. Substantial planning and environmental impact assessment has commenced for these future stages.
[52] At the hearing, the Tribunal raised the possibility that the 2012 DA approved the use of the entirety of what is now Lots 31 – 33 for extractive industry. Given that the present application is now for only Lot 31, that might be said (see para [17] above) to raise a question as to whether the application sought an amendment of the permit other than that of Condition 1. However, that was not the case put by the respondent, despite the issue being raised by us at the hearing several times. In any event, we are content to proceed on the basis that the 2012 DA concerned a 'planning unit' that was, in effect, limited to the area now contained within Lot 31. That is consistent with both the extent of the resource and the marked stages on the approved plan.
The respondent in its written material relies upon the passages in the cover letter that confirm that the area of the Site to be worked during the life of the DA, if the amendment is granted, will be limited to Stages 1 – 3. In closing, Mr Wittkuhn made the same submission about similar passages (including the above) in the CEMP.[53]
[53] ts 315, 31 March 2023.
However, when read fairly, and in the context of the document as a whole, those passages cannot be said to seek a reduction in the 'planning unit'[54] to only the southern third of the Site. Rather, they merely explain that extractive operations have not occurred beyond Stages 1 – 3 to date and that that circumstance will not change during the period of the extended term of the DA, the subject of the application.
[54] We note the caution that ought to be exercised in the use of this term – Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294, [30] – [35].
Such an explanation should be seen as entirely appropriate in circumstances where, as noted above, several of the approved plans are limited in their scope to the operations and their impacts within those three stages.[55]
[55] The Respondent's SIFC, at paragraph 69, included the contention that the reports in relation to noise, water, and mine closure were clearly limited to Stages 1 – 3.
By such statements the applicant is doing no more than providing reassurance that there will be no activities or impacts that have not already been assessed and for which suitable management is already in place.
It would be most unfair if such a statement was then relied upon for other purposes, contrary to the applicant's interests.[56]
[56] The applicant puts the matter slightly differently, but to the same end, in its Opening Submissions, dated 28 March 2023, para 41.
In our view, the cover letter and the CEMP should be regarded as very clearly expressing the applicant's application for the 2012 DA to be amended by altering the terms of Condition 1 to extend the life of the approval for a further five years pursuant to cl 77(1)(b) of the Deemed Provisions. There is no reasonable basis for the respondent's preferred construction of the application.
Further in our view, the respondent's preferred approach might be seen as contrary to the principle established by the High Court in Pioneer Concrete.[57]
[57] Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 (Pioneer Concrete) (per Stephen, Murphy and Wilson JJ).
As it was in that case, the use of the Site for the extraction of clay and shale includes the construction and use of access roads to allow the extracted material to be transported from the Site onto Kiln Rd and beyond.[58]
[58] Pioneer Concrete [502].
Plan B shows access roads traversing the Site from the access point at Kiln Road in the far north of the Site, through the middle of the Site (through what appear to Stages 8, 6 and 5), and to the working area in the south.
In our view, that merely confirms that the proper construction of the application, when read fairly and in context, is that it does not seek any alteration to the physical area over which the approval will apply. Rather, the application proceeds on the basis that the DA will cover the whole of the Site. The application seeks no more than an extension of time for an approval which covers (at least) the whole of the Site but which (through the approval of management plans) permits extraction from Stages 1 – 3 only.

b)ensure that any face permitted to remain upon the excavation site is left safe with all loose materials removed and where the excavation site is -
(i) sand, the sides are sloped to a batter of not more than 1:3 (vertical:horizontal); and
(ii) limestone or material other than sand, the sides are sloped to a batter which, in the opinion of the local government, would enable the site to be left in a stable condition;
c)ensure that the agreed floor level of the excavation is graded to an even surface or is otherwise in accordance with the rehabilitation and decommissioning programme approved by the local government;
d)ensure that all stockpiles or dumps of stone, sand or other materials are left so that no portion of that material can escape onto land not owned or occupied by the licensee nor into any stream, watercourse or drain that is not wholly situated within the land owned or occupied by the licensee;
e)erect retaining walls where necessary to prevent subsidence of land in the vicinity of any excavation;
f)remove from the site all buildings, plant and equipment erected, installed or used for or in relation to the carrying on of an extractive industry on the site and fill all holes remaining after such removal to the level of the surrounding ground and compact such filled holes sufficiently to prevent settling; and
g)break up, scarify, cover with topsoil and plant with grass, trees and shrubs all parts of the site where buildings, plant and equipment were erected or installed and all areas which were used for stockpiling unless otherwise specified under this local law.

Penalty $5,000 for each offence, and if the offence is of a continuing nature, to a daily penalty not exceeding a fine of $500.00 in respect of each day or part of a day during which the offence has continued.

ANNEXURE E

APPLICANT: Statewest Planning
PO Box 1377
MIDLAND WA 6936

OWNER:Bristile Holdings
C/- Austral Bricks
Locked Bag 100
MIDLAND WA 6936

PROPERTY:  Lot 31 ~~6 Shale Road, Lots 3 & 50~~ Kiln Road, Cardup
DEVELOPMENT:            Extractive Industry - Shale & Clay
USE CLASS:  Industry - Extractive
ORIGINAL APPROVAL DATE: 11 June 2012
DATE OF APPROVAL OF AMENDMENT: [day Month 2023]
Application for approval to commence development as per application form dated 17 January 2011 and accompanying plans is APPROVED under the above authority subject to the following conditions:
GENERAL
1.This approval expires ~~31 December 2022~~ [the date being five years from the Minister's determination].
1A. The landowner shall not, without the express written permission of the Shire, extract clay or shale from any area during the extended time period provided in Condition 1, save for that area hachured blue on the attached plan.
2.Operating hours are restricted to ~~6am~~ 7am to 5pm Monday to Saturday and are not permitted to occur on Sundays and Public Holidays.

COMPLIANCE
3.The landowner shall submit an annual report to the Shire's Director Development Services by 31 March each year. The annual report shall include an internal compliance audit of all the development and licence approval conditions and management plans. The annual report shall also provide details relating to complaints and complaint responses.
4.The proponent shall within 90 days of this approval prepare a Compliance Assessment Plan and Audit Table utilising the frameworks detailed in the Environmental Protection Authority document Guidelines for Proponents: Preparing a Compliance Assessment Plan. This plan is to be submitted for approval by the Director Development Services.

DUST
5.The proponent shall within 90 days of the date of this approval prepare and submit to the Shire for assessment a Dust Management Plan (DMP), in accordance with the Department of Environment and Conservation's A Guideline for Managing the Impacts of Dust and Associated Contaminates from Land Development Sites, Contaminated Sites Remediation and Other Related Activities document dated March 2011 (DEC Guide). Once approved, the Dust Management Plan is to be implemented in its entirety. Council may agree, following submission of an application in writing, to vary the approved Dust Management Plan.
5AThe landowner shall utilise streetsweepers, water carts and/ or such other means as are necessary to prevent the unreasonable deposit or build-up of nuisance dust on or adjacent to the intersection of the haul road with Kiln Road.

NOISE
6.The proponent shall prepare and submit to the Shire for assessment a Noise Impact Assessment and Noise Report prepared by a suitably qualified acoustic consultant by 30 June 2013, following the first full excavation campaign. Once approved by the Director Development Services, the Noise Report shall be implemented in its entirety.

STAKEHOLDER ENGAGEMENT
7.The landowner is to submit to the Shire within 12 months of this approval a plan for a Community Consultation Framework. The plan shall include, but not be limited to, the relevant land owner, community and government agency representatives, terms of reference for the Community Consultation Group and the frequency of the meetings. Once approved by the Director Development Services the plan is to be implemented in its entirety.
8.A Compliance Assessment Report for the approved Community Consultation Framework must be lodged with the local government by 31 March each year, or by such other time as may be agreed by the local government, following the approval of the Community Consultation Framework. The Compliance Assessment Report shall report in summary on:
(i)The community engagement activities carried out during the preceding year;
(ii)The stakeholder interaction carried out during the year, including the number and nature of any complaints made and the response to those complaints; and
(iii)The meetings of the Community Consultation Group.
Any records kept by the operator pursuant to the Community Consultation Framework, including the minutes of the Community Consultation Group meetings, must be provided to the local government if requested in writing. The annual Compliance Assessment Report and records kept pursuant to the Community Consultation Framework are to be made publicly available.

WATER RESOURCES
9.The landowner shall submit to the Shire an updated Water Management Plan by 31 December 2012. Once approved by the Director Engineering, the Water Management Plan is to be implemented in its entirety.
9AThe landowner shall, at all times, take such steps as are necessary to ensure that bunds are constructed and maintained so as to prevent the discharge of stormwater beyond the boundaries of the Site.

TRAFFIC
10.Signs are to be erected at the intersections of the internal haulage roads and Kiln Road warning "Caution - Trucks Using Road" during times of cartage.
11.The landowner shall implement the approved Traffic Management Plan prepared by McDowall Affleck and received by the Shire on 20 January 2011 to the satisfaction of the Director Engineering.
12.Kiln Road being widened as per the plans attached to and forming part of this approval to the satisfaction of the Shire. Prior to the completion of the widening of Kiln Road, traffic safety controls are to be implemented to the satisfaction of the Director Engineering.
13.Kiln Road to be upgraded to the satisfaction of the Director Engineering. Construction works on Kiln Road (including earthworks) are not to commence until Council has approved detailed engineering plans and specifications of the works, including earthworks, retaining walls, roads and paths, drainage, clearing, landscaping/rehabilitation and soil stabilisation measures, that apply both during and after construction.

EMERGENCY MANAGEMENT
14.An 'All Hazards Risks Assessment' in accordance with AS/NZS ISO 31000, 31010 and State Planning Policy 3.4 Natural Hazards and Disasters and associated mitigation plans, being prepared, approved and thereafter implemented to the satisfaction of the Director Engineering.

HAZARDOUS CHEMICALS
15.To prevent any spilled fuel entering the ground the applicant will use bunded hardstand refuelling areas or alternatively an industry best practice method to the requirements of the Director Development Services.
16.No on-site fuel storage and major servicing of equipment shall take place on site.
17.The operator shall ensure that:
(i)All trucks accessing the site and all mechanical equipment used on-site shall be fitted with or carry a spill kit containing absorbent booms, granules and pads and heavy duty waste bag, sufficient to clean up the accidental spill of the volume of fuel and other hydrocarbons (for example, hydraulic fluids) from each truck or piece of equipment;
(ii)Spill kits are replenished immediately following a spill event and contaminated soils removed and appropriately disposed of;
(iii)Any fuel or other hydrocarbon leakages or spills shall be cleaned up immediately and in any event within 12 hours of a leak or spill; and
(iv)The operator of any mechanical equipment used onsite shall, prior to commencement of extraction activity on the site and throughout the term of this approval, undergo practical instruction and training in the use of the spill kit.

18.The landowner shall keep a register of the extent, location, environmental implications and remedial actions taken for any accidental contamination of soil or water resources in a logbook to be kept on-site and available for immediate inspection by the Shire of Serpentine Jarrahdale.
19.The landowner shall ensure that no chemicals or potential liquid contaminants are disposed of on-site.

BIODIVERSITY, LANDSCAPE AND VISUAL IMPACT MANAGEMENT
20.An updated Visual and Rehabilitation Management Plan being submitted for approval to the satisfaction of Director Strategic Community Planning within 90 days of the date of this approval. In carrying out the development the approved Visual and Rehabilitation Management Plan must be complied with at all times.
21.The landowner shall comply with the Weed Management Plan prepared by Del Botanics dated July 2022 ~~control declared and environmental weeds throughout the site to the satisfaction of the Director Strategic Community Planning~~.
22.Where extractive industry activities, including stockpiling and haulage, are occurring within close proximity (30 metres) to remnant vegetation or rehabilitated areas, the applicant shall utilise post and wire fencing flagged with brightly coloured survey tape or flags or some other means approved in writing by the Director Strategic Community Planning, to prevent encroachment by machinery.
23.The excavation activities are to be restricted to a level no lower than 2 metres above the highest known water table.

MINE CLOSURE
24.A Mine Closure Plan to be submitted to the Shire for approval within 12 months of the date of this approval. The Mine Closure Plan shall be prepared in accordance with the Department of Mines and Petroleum and Environmental Protection Authority draft 'Guidelines for Preparing Mine Closure Plans' (June 2011) document (as amended). Once approved by the Director Strategic Community Planning, the closure plan shall be implemented in its entirety. Council may agree, following submission of an application in writing, to vary the approved closure plan.

CONTRIBUTION FOR LOCAL ROAD REPAIR
25.The operator is to pay the Shire of Serpentine Jarrahdale an annual contribution towards the repair and maintenance of the local government managed road used for the truck haulage route, calculated by reference to the WALGA publication, 'User Guide: Estimating the Incremental Cost Impact on Sealed Local Roads from Additional Freight Tasks (May 2015)' for the life of the approval.

The contribution shall be calculated by the amount of material reported to be extracted in the required annual report. The annual report must break down –
(a)Tonnages going to the Cardup brick plant; and
(b)Tonnages going to other sites and thus using the road to the intersection with the South West Highway.

The contribution is to be paid to the Shire within 30 days of the Shire's receipt of the annual report.