BGC (AUSTRALIA) PTY LTD and SHIRE OF MURRAY
[2010] WASAT 180
•8 DECEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BGC (AUSTRALIA) PTY LTD and SHIRE OF MURRAY [2010] WASAT 180
MEMBER: MS M CONNOR (MEMBER)
HEARD: 7 SEPTEMBER 2010
DELIVERED : 8 DECEMBER 2010
FILE NO/S: DR 306 of 2009
DR 14 of 2010
BETWEEN: BGC (AUSTRALIA) PTY LTD
Applicant
AND
SHIRE OF MURRAY
Respondent
Catchwords:
Town planning - Development application - Concrete batching plant and associated plant - Time limited approval - Whether a time limited approval is necessary in order to be satisfied that the development 'will not prejudice the progressive subdivision and development of the area' - Strategic industrial area - Land zoned 'Industrial Development' zone - No Outline Development Plan approved for the area - Meaning of 'notwithstanding' in the context of cl 6.13 of the Shire of Murray Town Planning Scheme No 4 - Degree of confidence - Weight to be given to documents that are not seriously entertained planning proposals - Infrastructure cost contributions - Consistency in decisionmaking
Legislation:
Peel Region Scheme
Planning and Development Act 2005 (WA)
Shire of Murray Town Planning Scheme No 4, cl 2.1, cl 2.2, cl 2.22, cl 3.2, cl 3.2.2, cl 3.3.3, cl 3.5, cl 6.13, cl 6.13.1, cl 6.13.8, cl 6.14.3
Result:
DR 306 of 2009
Application for review allowed
Decision of respondent varied
DR 14 of 2010
Application for review allowed
Decisions of respondent set aside and approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr M Hotchkin
Respondent: Mr CA Slarke
Solicitors:
Applicant: Hotchkin Hanly
Respondent: McLeods
Case(s) referred to in decision(s):
Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported)
Dilatte v MacTiernan [2002] WASCA 100
Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117
Rossi and City of Bayswater [2010] WASAT 33
Tran and Town of Vincent [2009] WASAT 123(S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
BGC (Australia) Pty Ltd applied to the State Administrative Tribunal for review of two decisions made by the Shire of Murray in relation to a concrete batching plant on portion of Lot 604 (No 791) Lakes Road, Stake Hill. In 2009, the Shire granted retrospective approval for a concrete batching plant, clay brick/block pave display and storage facility, and approval for the construction of five new material bins and a covered product display parasol on the subject land. Both approvals were subject to a condition limiting the terms of the approval to 11 December 2016. DR 306 of 2009 is an application seeking review of this condition imposed on the retrospective approval for the batching plant.
A further planning application seeking approval for the five material bins and a covered product display parasol to remain on the subject land beyond 2016 was refused by the Shire in December 2009. DR 14 of 2010 sought review of this refusal.
The issue was the same in both proceedings and the Tribunal ordered that the applications remain as separate proceedings but be heard and determined together. The question to be answered was whether a time limited approval was necessary in order for the Tribunal to be satisfied that the development would not 'prejudice the progressive subdivision and development of the area', within the meaning of cl 6.13.8 of the Shire of Murray Town Planning Scheme No 4.
The Tribunal considered the construction of cl 6.13 of Shire of Murray Town Planning Scheme No 4, and found that cl 6.13.8 provided for an exception to the last sentence of cl 6.13.1 on condition that the development/subdivision would not prejudice the progressive subdivision and development of the area.
It was common ground that there was no Outline Development Plan for this area, and the planning experts agreed that the only two documents that show any level of detailed planning for the area were not seriously entertained planning proposals. The Tribunal found that it could not be confident in the likely outcome of the future planning options for this area and as such, considered the merits of the applications having regard to the existing planning controls applicable to the land. The Tribunal was satisfied that approval of the concrete batching plant, material bins and covered product display parasol, without limiting the time for which the approval is valid, would not prejudice the progressive subdivision and development of the area.
Introduction
There are two applications for determination in these proceedings, although the issue is the same in both applications. DR 306 of 2009 originated as an application for review of two conditions, being condition 2 and condition 7, of the Shire of Murray's (respondent or Council) retrospective planning approval dated 28 May 2009 for a concrete batching plant, clay brick/block pave display and storage facility on portion of Lot 604 (No 791) Lakes Road, Stake Hill. During the course of the proceedings, the applicant advised the Tribunal that it did not wish to proceed with the review of condition 2. Accordingly, the matter proceeded to final hearing with the only issue in dispute being condition 7, which reads as follows:
This approval shall expire on 11 December 2016. All development the subject of this approval shall be removed from the site within 60 days of this date and the land restored as near as practicable to its condition immediately before the development started, unless further planning approval is first granted by Council to continue to use the site for the purpose herein approved.
The other proceeding, matter DR 14 of 2010, is an application to review the decision of the respondent to refuse approval for the covered product display parasol and five material bins to remain on the subject land beyond 2016. The following reasons for refusal were given:
1.[T]he subject land forms part of a future strategic industrial area. There is no approved Outline Development Plan in place for the area and deletion of the conditions will be likely to prejudice the orderly and proper planning and development of the area and detrimentally impact on the future amenity and benefit that comprehensive pre-planning will bring to the area, adjacent future property owners and future resident industries;
2.[G]iven the lack of comprehensive pre-planning of the area, the previous approvals were only issued on the basis that the development was of a temporary nature and on the condition that the period of validity of the approvals were so fundamental to Council's consideration of the previous applications that it is considered that approvals would not have been issued without such conditions; and
3.[T]here is specific authority under the Shire of Murray Town Planning Scheme No 4 to limit the period of validity of a planning approval and given the strategic nature of this future Industrial area, the lack of comprehensive pre-planning of the area and likely prejudicial and detrimental impact of removing the conditions, it is considered that there are reasonable grounds to apply a time limit in this case.
The Tribunal, on 1 February 2010, ordered that the applications remain as separate proceedings but be heard and determined together.
Background
In September 2006, an application for planning approval was lodged with the respondent for a 'mobile concrete batching plant, silos, storage bins, dry and wet waste, truck and car parking area, clay brick storage areas, lunch-store room facilities'.
Mr Rodney Peake, Director, Planning and Development Services of the Shire of Murray, considered one of the key matters in the assessment of the 2006 application was the potential impact that an approval would have on the orderly and proper planning and development of the broader industrial area, and the ability of the planning process to maximise the amenity and benefit of the overall future industrial estate. As a result of consultation with LandCorp and the then Department of Planning and Infrastructure, which suggested that 'a more suitable location is for the proposed development to be sited further east to separate the distance from the entrance of the Nambeelup Industrial Estate', amended plans were lodged which repositioned the development some 300 metres further east along Lakes Road. In November 2006, the respondent granted approval to the application, subject to 13 conditions, one of which stated:
This approval shall expire after 10 years, after which time the concrete batching plant shall be removed from the property and the site rehabilitated to the satisfaction of the Director Planning and Development Services, unless a further planning approval is granted by Council.
According to Mr Peake, 'the 10 year time limit was imposed following discussions with the applicant, given that comprehensive preplanning of the overall industrial area had not been undertaken at the time and a permanent approval would have had the potential to prejudice and detrimentally impact on the planning and development of the area'.
The Tribunal was told that construction of the plant commenced in 2008 and became operational in 2009. It became apparent to the respondent during the construction phase that the development had not been carried out in accordance with the approved plans, as several of the conditions of planning approval had not been satisfied, and construction works and operations had commenced without a building licence or certificate of classification. In April 2009, in an attempt to remedy the breaches, the applicant lodged an application for retrospective planning approval for minor variations to the layout and configuration of the development. In addition, a planning application was lodged for approval to construct five new material bins and a covered product display parasol.
In May 2009, the Council resolved to approve both applications, imposing a condition on each of the approvals limiting the term of approval to 11 December 2016, being ten years from the initial date of approval. Review proceedings were instigated against the imposition of this condition on the retrospective planning approval (DR 306 of 2010).
In December 2009, the Council considered an application for prospective approval to allow the product parasol and five material bins to remain on the subject land beyond 2016 (DR 14 of 2010).
Subject land
Lot 604 Lakes Road, Stake Hill (Lot 604) is owned by Tan and Tan Corporation Pty Ltd and is 215.87 hectares in area. A 1.936 hectare portion of Lot 604 was leased to the applicant in 2007 for 10 years, with two options for further terms of 10 years each. It is this portion of Lot 604 that contains the concrete batching plant (subject land).
The subject land is located approximately 1 kilometre by road east of the Lakes Road interchange of the new extension to the Kwinana Freeway. The northern boundary of the land is bounded by a realigned portion of Lakes Road, being an important regional transport corridor linking Mandurah in the west and the South Western Highway at North Dandalup in the east. The southern boundary of the land is bounded by the old alignment of Lakes Road, which now terminates immediately to the east of the new extension of the Kwinana Freeway.
Planning framework
Strategic
The subject land forms part of a larger area being considered for a future strategic industrial area, commonly referred to as the Nambeelup Industrial Area. Directions 2031 identifies Nambeelup as an area that is currently being planned as a regional industrial centre that is to be primarily focused on providing industrial products and services to the Peel subregion (emphasis added). According to Mr Peake, the overall industrial area is planned at around 1,000 hectares and, at present, only approximately 177 hectares of land is zoned for industrial purposes.
Two strategic documents that reinforce the Nambeelup locality as a regional industrial centre are:
•Draft Southern Metropolitan and Peel Sub Regional Structure Plan (2009); and
•Draft Industrial Land Strategy Perth and Peel (2009)
A further two documents, referred to by the parties, are:
•Draft Nambeelup Industrial Area Outline Development Plan (July 2005) (draft ODP); and
•Draft Nambeelup Industrial Concept Plan (unpublished) (draft Concept Plan).
Statutory
The subject land is zoned 'Industry' in the Peel Region Scheme (PRS) and 'Industrial Development' under the Shire of Murray Town Planning Scheme No 4 (TPS 4 or Scheme).
Under cl 3.2 of TPS 4, all development, except as otherwise provided in cl 3.5, is required to obtain prior planning approval of the Council. Clause 3.3.3 of TPS 4 provides the authority for the Council to refuse or approve an application with or without conditions. Furthermore, the Council may, where it deems appropriate, grant planning approval which 'permit the use and development of land to occur for limited periods of time, after the expiration of which periods, as specified in each such approval, the use shall cease and the site shall be restored to the condition existing at the time when the approval was given unless a further approval has been sought and obtained' (cl 3.3.3(ii)).
Without limiting the scope of the discretion to determine an application, cl 3.2.2 of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•the aims and objectives of the Scheme (cl 3.2.2(i));
•the provisions of the Scheme (cl 3.2.2(ii));
•the nature of the proposed development in relation to the development either existing or proposed on adjoining land (cl 3.2.2(iii));
•the existing and likely future amenity of the Scheme area (cl 3.2.2(viii)); and
•any other matters relevant to town and regional planning, the public interest in general and the locality surrounding the proposed development in particular.
The General Objectives of the Scheme, set out in cl 2.1 of TPS 4, are as follows:
(i)to preserve the integrity of the Shire of Murray and its identity;
(ii)to ensure the orderly and proper development of the Scheme Area; and
(iii)to secure the amenity, health and convenience of the Scheme Area and its inhabitants.
The specific objective of the Scheme, as set out in cl 2.2, relevant to this application is:
(v)to encourage industrial uses to establish within the area set aside for that purpose;
The provisions specifically relating to the Industrial Development zone are specified in cl 6.13 of TPS 4. The subclauses of particular relevance to this application are as follows:
6.13.1Planning for an industrial estate should take account of the need to derive maximum amenity or benefit for adjacent property owners as well as for prospective resident industries. This planning consideration should be reflected in a plan for future subdivision and development, to be known as an 'Outline Development Plan'. The subdivision and development of land zoned 'Industrial Development' should not proceed unless it accords with an approved 'Outline Development Plan'. ... (emphasis added)
and cl 6.13.8, as it is common ground that there is no Outline Development Plan (ODP) for this area:
6.13.8Notwithstanding clause 6.13.1, Council may recommend subdivision approval or approve the development of land within the Industrial Development zone prior to the approval of an Outline Development Plan, provided Council is satisfied that this will not prejudice the progressive subdivision and development of the area.
Issues
The intent of the time limited approval is to ensure that the proposed development does not prejudice the orderly and proper development of the locality, and in particular, the progressive subdivision and development of the area. The question to be answered in relation to this application is whether a time limited approval is necessary in order for the Tribunal to be satisfied that the development 'will not prejudice the progressive subdivision and development of the area' within the meaning of cl 6.13.8 of TPS 4.
Clause 6.13 of TPS 4
The respondent submitted that the starting point is cl 6.13.1 of the Scheme and that there are two critical elements to that provision. Firstly, there is a presumption that neither subdivision nor development of land zoned Industrial Development will proceed unless it accords with an approved ODP, and secondly, the essential objective or purpose of the industrial development zone, which is to be achieved through the ODP, is the need to derive maximum amenity or benefit for adjacent property owners, as well as for prospective resident industries.
The respondent considered the second element to be the fundamental consideration for the planning of the Industrial Development zone and therefore one that must be given weight in assessing the merits of the applicant's proposal. The respondent submitted that the ODP is the critical document against which applications for development and subdivision approval are to be assessed and, where proposals arise in the absence of an ODP, such as this case, cl 6.13.8 of TPS 4 requires a finding that that the development will not prejudice the progressive subdivision and development of the area. The respondent argued that cl 6.13.8 of the Scheme must be read in its context and not in isolation, and submitted that cl 6.13.8 is part of the overall provisions of cl 6.13 of the Scheme, which deals in detail with the planning for the Industrial Development zone and, therefore, cl 6.13.8 of TPS 4 needs to be read in a way that is consistent with 'the need to derive maximum amenity and benefit for adjacent property owners as well as for prospective resident industries'. The respondent argued that the merits of the 'exception', as provided by cl 6.13.8 of TPS 4, cannot be assessed without having regard to the 'rule' established by cl 6.13.1 of the Scheme.
Clause 6.13 of the Scheme sets out specific provisions relating to the Industrial Development zone. The Tribunal agrees with the respondent that the starting point is cl 6.13.1 of the Scheme and that no development or subdivision of land zoned Industrial Development should proceed unless it accords with an approved ODP. However, it is common ground that there is no ODP for this area. Provision has been made in cl 6.13 of TPS 4 for such circumstances, and cl 6.13.8 provides as follows:
Notwithstanding clause 6.13.1, the Council may recommend subdivision approval or approve the development of land with the Industrial Development zone prior to the approval of an Outline Development Plan, provided Council is satisfied that this will not prejudice the progressive subdivision and development of the area.
The word 'notwithstanding' as a preposition means 'without being withstood or prevented by; in spite of': The Macquarie Dictionary (Macquarie, 4th ed, 2005) at 983.
The Tribunal agrees that cl 6.13.8 must be read in context with the other provisions of cl 6.13 of the Scheme. However, the use of the word 'notwithstanding' in cl 6.13.8 clearly signals an exception to the earlier provision of cl 6.13.1 of TPS 4. The Tribunal rejects the respondent's submission that the requirements for an ODP as expressed in cl 6.13.1 are to be read into cl 6.13.8 of TPS 4, as the wording of cl 6.13.8 plainly provides for an exception to the last sentence of cl 6.13.1, on condition that the development/subdivision will not 'prejudice the progressive subdivision and development of the area'. Furthermore, the phrase 'maximise amenity and benefit for adjacent property owners as well as for prospective resident industries' in cl 6.13.1 of the Scheme is a specific consideration that should be reflected in '[p]lanning for an industrial estate' in terms of an ODP. The purpose of cl 6.13.1 is to establish a 'planning consideration [that] should be reflected' in an ODP. The purpose of cl 6.13.8 is quite different. Clause 6.13.8 provides a means for recommendation of subdivision and approval of development in situation where there is no ODP.
'Will not prejudice the progressive subdivision and development of the area'
The respondent did not accept the applicant's proposition that the phrase 'will not prejudice the progressive subdivision and development of the area' related only to the actual physical subdivision and development of the area. The respondent interpreted the phrase as meaning the progressive subdivision and development as planned by the ODP required by cl 6.13.1 of the Scheme, and submitted that the planning purpose of cl 6.13.8 was to enable exceptions that were not likely to make subdivision or development in accordance with the ODP harder to implement. The respondent asserted that approval of this development without limiting the time for which the approval is valid will affect the ability of the Shire to plan for the area, citing the following three reasons. Firstly, according to the respondent's planning experts, the ODP which will inevitably be approved for this area is very likely to call for a precinct-based approach to planning for the area, and it is likely that the section of Lakes Road where Lot 604 is located will form part of a precinct that will be something in the nature of a 'service commercial' precinct. The respondent contended that a concrete batching plant is likely to be undesirable, or perhaps not permitted at all, within such a precinct and that approval without limiting the time for which the approval is valid creates a real risk that an unsuitable use will be entrenched in a location that is both highly visible and important for the future industrial estate. Secondly, and related to the first argument, is that in a service commercial precinct, streetscape presentation of development is likely to be important and the concrete batching plant will be inconsistent with the likely desired streetscape of the precinct. Thirdly, it is likely that the future industrial estate will become a Development Control Area pursuant to s 6.14.3 of TPS 4 and that there will be a requirement for infrastructure contributions to be shared between landowners. The respondent argued that if a permanent development is approved at this time, it increases the difficulties that are likely to be faced in obtaining a fair and proper contribution from the subject land at an appropriate time in the future.
The planning experts, Mr Stephen Allerding and Mr Alan Stewart, both town planning consultants called on behalf of the applicant, and Mr Peake and Mr Brett Flugge, Executive Manager Strategic Planning for Council, both called on behalf of the respondent, agreed that any future ODP is unlikely to change as a consequence of the concrete batching plant being approved without a time limit.
The respondent submitted that one of the elements of an ODP is the designation of land use precincts and the range of land uses possible within those precincts, and that this approach is likely to be included in the ultimate ODP, because the existing Industrial Development zone and the contemplated larger industrial area of Nambeelup will be given over to a wide range of industrial-type land uses. The respondent expressed the view that the Tribunal can have a 'high degree of confidence' that the subject land and surrounding land will be designated a land use precinct where service industries and other compatible uses will be located, and general industries will be discouraged or prohibited for the following reasons. Firstly, the subject land has frontage to the Lakes Road deviation, which is likely to become the major east-west artery for traffic purposes and, therefore given its exposure, is a key area to locate such land use activities. Secondly, the connection of Lakes Road to the freeway interchange will serve as the main entrance into the industrial area and, therefore, development along this road is envisaged to be of the highest quality. Thirdly, the draft OPD shows the locality surrounding this site as a service commercial precinct and the southern portion of Lot 604 as light industrial. Fourthly, the draft OPD for Lot 530 Lakes Road shows a mixed business and service commercial precinct fronting Lakes Road, with notes to the ODP indicating that there will be the need to prepare design guidelines addressing the interface with development and Lakes Road. Fifthly, the draft Concept Plan indicates that the land immediately north of the subject land may be suitable for a future business park, and any adjacent development would need to be compatible with the business park and exhibit a high level of amenity.
As articulated in Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported) (Agnew) and confirmed by this Tribunal in Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 (Nicholls), '[i]t is the duty of the [Town Planning Board], and of this Tribunal on appeal, to give a decision on the merits of the application having regard to the existing planning controls applicable to the land'.
At present, as admitted by Mr Peake in his witness statement, the planning for the area has not advanced to a stage of even accurately defining the extent of the industrial land. The subject land is 1.9 hectares of 177 hectares currently zoned Industrial Development, which equates to 1.1% of the zoned land area. The locality is predominantly rural in character, with the land being the first of an industrial nature developed in the locality.
The experts agreed that a concrete batching plant is a suitable use in the Industrial Development zone; their opinions diverge as to the degree of confidence that can be given to the subject land and surrounding area being designated as a land use precinct for service industries and other compatible uses. The Tribunal, in Nicholls, recognised the need to take into consideration a 'seriously-entertained' planning proposal and that the weight to be given to the planning proposal will, in each case, depend upon the degree of likelihood of its being finally adopted. The experts agreed that the documents relied on by the respondent to provide the level of confidence that the area is likely to be a service commercial precinct could not be considered as seriously entertained planning proposals.
The Tribunal cannot be confident that the likely outcome of future planning options for this area is as the respondent contended. There is no certainty or imminence in the planning proposals. At best, it could be said that there is a mere possibility that the subject land and surrounding area may be included in a service commercial precinct. In Agnew, the then Town Planning Appeal Tribunal found that:
The extent that future planning options are mere possibilities, they should be excluded from consideration or at best, accorded very little weight. … So far as the prejudice of future planning options is concerned, we consider that the principle is to be limited to circumstances where the grant of an approval (whether it be of an application to subdivide or of an application to commence development[)] would impair the objective of a 'seriously[-]entertained proposal.'
As the concept of designating the area of the land as a service commercial land use precinct is not a seriously entertained planning proposal, it is not a relevant matter for consideration. Even if it had reached the stage of 'seriously-entertained', it would be given minimal weight having regard to the lack of certainty and imminence of such planning proposals.
Further, the location of the subject land on the major east-west artery does not provide any level of certainty that the subject land and surrounding area is likely to be identified as a service commercial precinct. As the applicant says, Lakes Road, being a future regional freight road, may well be the best location for a concrete batching plant and not suited to strip commercial development.
The planning experts agreed that the approval of the concrete batching plant on a permanent basis will not prevent the planning and development of the area and will not result in the respondent modifying its intended approach to the designation of land use in the area under a future ODP. The use of the land as a concrete batching plant is consistent with the general intent of the Industrial Development zone, and there has been no evidence given to suggest that the development and subdivision of adjoining land will be prejudiced even if the adjoining land is identified as a service commercial precinct.
Infrastructure cost contributions
The planning experts agreed, and the Tribunal accepts, that infrastructure cost contributions, if required in the future by way of a Development Contribution Plan or similar, could be obtained through a number of different mechanisms and, as such, the 'progressive subdivision and development of the surrounding area' will not be prejudiced as the respondent will be able to obtain cost contributions from the applicant at a later date when such a contribution plan is in place.
One of the mechanisms discussed by the planning experts was the imposition of a condition of planning approval requiring an agreement to be entered into by the applicant agreeing to contribute toward infrastructure costs in accordance with the provisions of a future adopted Development Plan. The respondent submitted that, in the event that the applications for review were allowed, a condition to this effect should be imposed.
The Tribunal does not consider such a condition to be appropriate at this point of time, as there is no certainty or imminence to the eventuality of a contribution plan and there are other more appropriate mechanisms available, as discussed by the planning experts, if and when, a plan is put in place.
Consistency in decision-making
The respondent raised the issue of consistency in decision-making and referred to the decision of the Full Court of the Supreme Court in Dilatte v MacTiernan [2002] WASCA 100. The respondent asserted that the earlier decision of the respondent in 2006, which imposed a time limited condition, should be followed, as the proposal is substantially the same.
Consistency in decision-making is an important guiding principle recognised by the Tribunal in a number of decisions: Tran and Town of Vincent [2009] WASAT 123(S) and Rossi and City of Bayswater [2010] WASAT 33. As pointed out by the respondent, this principle does not follow if the earlier decision was clearly in error or there was some relevant change in the planning circumstances between the first and second decision.
It is clear that, judged as at today's date, the condition is not necessary for the Tribunal to be satisfied that the approval 'will not prejudice the progressive subdivision and development of the area'. Given this finding, it would be inappropriate and incorrect for the Tribunal to come to the same conclusion as the respondent in 2006.
Conclusion
In considering the question of whether the approval of the development should be time limited, the Tribunal is satisfied, for the above reasons, that the approval of the development without limiting the time for which the approval is valid will not prejudice the progressive subdivision and development of the area within the meaning of cl 6.13.8 of TPS 4 and, as such, considers that the applications for review should be allowed.
Orders
The Tribunal makes the following orders:
DR 306 of 2009
1.The application for review is allowed.
2.The decision of the respondent, made on 28 May 2009 (conveyed in correspondence of 10 July 2009), granting retrospective approval for a concrete batching plant, clay brick/block pave display and storage facility on portion of Lot 604 (No 791) Lakes Road, Stake Hill is varied as follows:
(i)condition 7 is deleted.
DR 14 of 2010
1.The application for review is allowed.
2.The decisions of the respondent made on 28 May 2009 (conveyed in correspondence on 10 July 2009) and 22 December 2009 with respect to a development application for the construction of five material bins and a covered product display parasol are set aside and a decision is substituted that approval is granted under the Peel Region Scheme and Shire of Murray Town Planning Scheme No 4 for the development subject to the conditions imposed by the respondent in its decision date 10 July 2009, but not including condition 4.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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