Bio Organics Pty Ltd and Shire Of Serpentine-Jarrahdale
[2016] WASAT 96
•8 AUGUST 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BIO ORGANICS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2016] WASAT 96
MEMBER: MS L EDDY (MEMBER)
MR P CURRY (SENIOR SESSIONAL MEMBER)
HEARD: 1-3 DECEMBER 2015, 3 MAY 2016
DELIVERED : 8 AUGUST 2016
FILE NO/S: DR 328 of 2014
BETWEEN: BIO ORGANICS PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town Planning Development application Transport depot Proposed tanker to tanker transfer of liquid waste Proposed stockpiling of landscaping goods Whether both proposed activities constitute single use or two separate and distinct uses Rural zone Whether amenity impacts Noise Visual Odour Whether risk to environment Use of water from site classified as 'potentially contaminated' for dust suppression
Legislation:
Contaminated Sites Act 2003 (WA), s 58
Environmental Protection (Controlled Waste) Regulations 2004 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection Regulations 1987 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67
Planning and Development Act 2005 (WA), s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.5, cl 5.10.1, cl 6.3, cl 6.4.2
Result:
Application for review granted
Decision of respondent set aside and instead development application approved subject to conditions
Summary of Tribunal's decision:
The Tribunal had before it an application for review of the respondent's refusal to approve a development application on Rural zoned land in Oakford. The proposed development involved two distinct and separate aspects: a transport depot that involved the transfer of liquid waste from one vehicle to another, and an operation involving the stockpiling of landscaping goods for bulk sale and supply. The Tribunal had before it evidence in relation to potential amenity impacts of the proposed development (arising from vehicle noise, odour emissions and the visual impact of a proposed noise attenuation measure). It also had evidence in relation to the history of the site and in relation to the potential environmental risks associated with the proposed development. On the evidence before it, the Tribunal determined that there would not be any adverse amenity impact or environmental risk caused by the proposed development. The Tribunal determined that the proposed development could be approved subject to a number of conditions.
Category: B
Representation:
Counsel:
Applicant: Mr D Avila and Mr B Avila (Directors)
Respondent: Mr C Slarke
Solicitors:
Applicant: N/A
Respondent: McLeods Barristers and Solicitors
Case(s) referred to in decision(s):
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) LGERA 431
Hasan v Moreland City Council [2005] VCAT 1931
Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) LGERA 414
Land Alliance Pty Ltd v City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Mann and City of Rockingham [2006] WASAT 115
Puma Energy Australia and City of Cockburn [2016] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 18 July 2014, Bio Organics Pty Ltd (applicant) requested development approval from the respondent for what was described as a transport depot on Lot 36 (No 945) Abernethy Road and on a small part of the adjacent Lot 35 (No 946) Abernethy Road in Oakford (site). The proposed development primarily involves two aspects: being the transfer of liquid waste from one vehicle to another vehicle, and the delivery in and out, and the stockpiling of landscaping goods for bulk sale and supply. It also involves the storage and maintenance of vehicles and equipment associated with those activities. Access to the site by large vehicles (trucks) is proposed to be via a private road on the battleaxe leg of Lot 6 King Road (battle-axe leg road), which abuts the southern end of the site. Lot 6 King Road is also owned by the applicant.
On 23 September 2014, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the deemed refusal of the proposed development by the respondent, as more than 60 days had elapsed since the request for development approval had been lodged with the respondent.
The parties engaged in mediation and subsequently the proposed development was advertised pursuant to cl 6.3 of the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme). Following advertising, the respondent considered the proposed development on 27 July 2015 and resolved to refuse the application for the following reasons:
a.The proposed activities could impact on the integrity of the investigations required under the closure notice issued for the premises, or under the Contaminated Sites Act 2003.
b.The proposal relies on access via the 'Battle-axe' of Lot 6 to King Road, and would result in a negative impact on the amenity of Lot 14 and Lot 15 adjacent to the 'Battle-axe' due to noise.
c.The proposed use is not considered to be consistent with the objectives of the Rural Strategy 1994 or the Rural Review 2013.
d.The proposed use is not considered to be consistent with State Planning Policy 2.1 PeelHarvey Coastal Plan Catchment.
e.Lot 35 and Lot 36 do not have direct frontage / access to an approved Restricted Access Vehicle network[.]
Site and locality
Lot 36 Abernethy Road is 21.49 hectares. Lot 35 Abernethy Road is similar in size; however, it is only a small portion of the southeastern corner of that lot that is intended to be used for the purposes of the proposed development. That corner has an existing area of hardstand and a shed, which are proposed to be used for the purposes of storing vehicles and equipment and for carrying out maintenance of vehicles.
Lot 6 King Road abuts the entire southern end of Lot 35 Abernethy Road and approximately half of the southern end of Lot 36 Abernethy Road. Lot 6 King Road has a battle-axe leg that extends from approximately adjacent to the southwestern boundary of Lot 35 Abernethy Road extending to King Road and passing between Lots 14 and 15 King Road.
The site is located within the PeelHarvey Coastal Plain catchment area and is near to the Jandakot Water Mound.
The relevant locality was described by Mr Thomas Hockley, the town planner engaged by the respondent, as being the area bounded by King Road to the west, Thomas Road to the north, Nicholson Road to the east and Anderson Road to the south (T:120; 01.12.15). Mr Peter Goff, the town planner engaged by the applicant, identified the locality in roughly the same way, as shown on Figure 1 to his witness statement (Exhibit 18), although he apparently includes the land on both sides of those roads and not just the inner area bounded by them. The Tribunal is satisfied, having conducted a site view, that the relevant locality is the area bounded by King Road, Thomas Road, Nicholson Road and Anderson Road plus a ring outside of those roads so as to generally include properties on, or near to, the other side of each of those roads.
Both the town planners agreed that there are a variety of uses being carried out in that locality.
On the opposite side of King Road, extending from a point slightly to the south of the battle-axe leg of Lot 6 King Road in a northerly direction, is Mudong Nature Reserve. This is a large bush reserve that is heavily vegetated with native vegetation. On the remaining lots adjacent, or near to, King Road there are a number of 'light industrial' type uses including four transport depots, two poultry farms, a nursery, as well as storage uses and sand extraction. There is another poultry farm on Thomas Road.
The remainder of the lots in the vicinity of King Road, as well as a number of lots along one side of Orton Road, which is perpendicular to King Road and within the locality, are rural living type lots. Lots 14 and 15 King Road, on either side of the battle-axe leg of Lot 6 King Road, have residences on them and appear to be used for rural living purposes. There are 18 residences within a 1 kilometre radius of the site.
The eastern half of the locality has a more traditional rural character with much larger lots that appear to be predominantly used for grazing and cropping purposes.
History of the site
In 2001 approval was given for a green waste composting facility on the site. The applicant obtained the relevant licence for composting and soil blending to occur on the site under the Environmental Protection Act 1986 (WA) (EP Act). The site was used for the manufacturing of compost until 2014, when the Department of Environment Regulation (DER) revoked the licence and issued a closure notice requiring the facility to be closed down in accordance with the terms of the notice. The closure notice advised that 'elevated levels of nitrogen in the groundwater adjacent to the composting facility have been found' (Exhibit 4).
The DER advised the respondent in April 2014 that it had registered a memorial against the certificate of title for Lot 36 Abernethy Road under s 58 of the Contaminated Sites Act 2003 (WA) recording the site classification as 'Possibly contaminated investigation required'. The reasons for this classification were reported in the appeal against the classification as including that 'metals and nutrients in groundwater were detected at concentrations exceeding the Australian Drinking Water Guidelines, Irrigation Guidelines and Aquatic Systems freshwater guidelines, as well as the domestic nonpotable use guidelines …' (Exhibit 4).
The respondent was advised that it may not grant planning approval for any proposed development on Lot 36 Abernethy Road without seeking, and taking into account, advice from the DER as to the suitability of the proposed development. In accordance with this requirement, the respondent referred the development application to DER.
The respondent was advised by DER, by letter dated 6 March 2015, that the DER considered that the liquid waste transfer aspect of the proposed development constituted a prescribed activity under the Environmental Protection Regulations 1987 (WA) and would require works approval and a licence under the Environmental Protection Act 1986 (WA) (Exhibit 2). In relation to the landscaping goods component of the proposed development, the DER advised that it considered this a planning matter and it had no comment in regard to that component of the proposal. The respondent was advised that the DER considered that the planning approval stage took primacy, in terms of sequence, over the DER's regulatory determinations. The respondent was advised that the DER would not determine any application for works approval or for any relevant licence, until planning approval had been granted.
Applicant's development proposal
The liquid waste aspect of the proposed development involves delivery of liquid waste to the site in small trucks. It is proposed that these trucks enter the site from King Road then travel along the battle-axe leg road to reach a dedicated area located on the existing hardstand on Lot 36 Abernethy Road. This is where a transfer ramp will be located.
The delivery trucks will transfer the liquid waste directly into a large tanker with a 50m3 carrying capacity parked to the side of the transfer ramp. This transfer occurs in one of two ways. In some cases the delivery truck will proceed to park at the top of the transfer ramp in order to allow the liquid waste to be transferred via gravity feed into the large tanker parked adjacent to the ramp and below the delivery truck. Alternatively, the delivery truck will park adjacent the large tanker and transfer liquid waste using a pump attached to one of the vehicles. Once full, the large tanker will carry the accumulated liquid waste off site for treatment at a licenced facility.
In order to ameliorate the impact of the noise of vehicles travelling along the battle-axe leg road to access and exit from the site, it is proposed to construct a 2 metre high vegetated bund for a length of 140 metres on the northern side of the battle-axe leg road.
The other aspect of the proposed development involves delivery of landscaping goods to the site in bulk, with up to 50 tonnes per delivery. The goods will be stored on site awaiting later collection of small loads as needed for commercial uses off site. Landscaping goods will include soils, mulches, aggregate, stones, gravel and other similar bulk material, plus trees and other products used in landscaping. These goods will be stockpiled on a dedicated strip of hardstand on Lot 36 Abernethy Road. This area for the stockpiling of landscaping goods is the western part of a large existing hardstand area adjacent to an existing 1 to 1.5 metre earth bund. The landscaping goods will be kept in stockpiles with a maximum volume of 10,000m3 for any individual product with a maximum height of any stockpile being 6 metres.
It is not clear in the development application whether the trucks entering and leaving the site in relation to this aspect of the proposed development would use the battle-axe leg road or would use the other internal road that travels through Lot 35 to access Abernethy Road.
The area where the liquid waste transfer is to occur is to the east of the strip of hardstand to be used for stockpiling landscaping goods.
Another existing small area of hardstand and a shed located on Lot 35 Abernethy Road will be used for the storage of vehicles, plant and equipment as well as for the maintenance of vehicles.
Planning framework
The site is zoned 'Rural' under the Metropolitan Region Scheme (MRS) and under TPS 2. The purpose and intent of the Rural zone is specified in cl 5.10.1 of TPS 2 to be 'to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area'.
The land use category 'transport depot' is defined in Appendix 1 of TPS 2 as follows:
… land or buildings designed or used for one or more of the following purposes:
(a)The parking or garaging of more than one commercial vehicle used or intended for use for the carriage of goods (including livestock) or persons.
(b)The transfer of goods (including livestock) or passengers from one vehicle to another vehicle.
(c)The maintenance, repair or refuelling of vehicles referred to in (a) or (b) above.
The above uses (a) to (c) inclusive, singularly or collectively may, with Council's planning consent, include as an incidental use overnight accommodation of patrons of the facilities.
The respondent submitted that, although the proposed development is described by the applicant as a 'transport depot', in fact what is proposed are two separate, independent uses, only one of which fits within the definition of a 'transport depot'. The liquid waste part of the proposed development involves the transfer of goods from one vehicle to another. However, the respondent submits, the aspect of the proposed development involving landscaping goods is really about storage or stockpiling of goods rather than the transfer of goods from one vehicle to another.
As stated by his Honour Steytler J (with Ipp and Kennedy JJ agreeing) in Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) LGERA 431 at [53]:
… each proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site.
The Tribunal is satisfied that the two aspects of the proposed development are in fact two separate land uses. Other than the fact that they will share use of the internal roads and the hardstand and shed area within Lot 35 Abernethy Road, the uses have no connection and do not appear to affect each other at all.
The liquid waste aspect of the proposed development comfortably comes within the definition of 'transport depot' in TPS 2. The zoning table in TPS 2 provides that 'transport depot' is an 'SA' use in the Rural zone, which means that this use may, at the decisionmaker's discretion, be permitted after the proposal has been advertised in accordance with the Scheme.
However, we are not satisfied that the landscaping goods aspect fits within the 'transport depot' definition. While vehicles will be involved in delivering the goods to and from the site, there will be no transfer of goods from one vehicle to another. A significant area of hardstand, being approximately 20 metres by 140 metres, is dedicated for the stockpiles of landscaping goods. This, and the large maximum sizes of the proposed stockpiles, indicates that the goods are likely to remain on site for some time.
The only land use category in the Scheme that comes close to describing this aspect of the proposal is 'warehouse', which relates to the storage of goods and the offering for sale of those goods by wholesale. However, 'warehouse' is defined to mean 'land and buildings' (Tribunal's emphasis) used for these purposes. This proposal involves storage outside and not in any building. The Tribunal finds that this aspect must be considered, as was submitted by the respondent, as a 'use not listed'.
Clause 3.2.5 of TPS 2 provides:
If the use of land for a particular purpose is not specifically mentioned in the zoning table and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:
a) determine that the use is not consistent with the objectives and purpose of the particular zone and is therefore not permitted; or
b) determine that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the advertising procedures of Clause 6.3 in considering an application for planning consent.
Mr Hockley and Mr Goff agreed, following their conferral, that the proposed development, including the landscaping aspect, is not inconsistent with the purpose and intent of the Rural zone. The respondent did not dispute, and the Tribunal accepts, that this aspect of the development proposal is capable of being permitted under the Scheme.
The proposed development has been advertised in accordance with cl 6.3 of TPS 2, so it is now a matter of how the discretion to approve or refuse the proposed development should be exercised.
In relation to the factors to be considered when determining whether to consent to an application for development approval, cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) applies in place of cl 6.4.2 of TPS 2: Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] [47]. Relevant to this application cl 67 of Sch 2 of the LPS Regulations provides:
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c) any approved State planning policy;
(d) any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e) any policy of the Commission;
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
…
(n) the amenity of the locality including the following
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
(o) the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
…
(r) the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w) the history of the site where the development is to be located;
…
(za) the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
State Planning Policy 2: Environment and Natural Resources Policy and State Planning Policy 2.1: PeelHarvey Coastal Plain Catchment are policies that are relevant to consideration of the proposed development. However, Mr Goff and Mr Hockley agreed, and the respondent did not dispute, that the proposed development was generally consistent with the provisions of these policies.
State Planning Policy 2.5: Land Use Planning in Rural Areas (SPP 2.5) is also relevant to consideration of the proposed development. In particular, cl 5.8, which deals with avoiding land use conflicts, is referred to by the town planners. Relevantly to these proceedings, cl 5.8 of SPP 2.5 provides:
The introduction of sensitive or incompatible land uses such as additional housing or accommodation in rural areas can compromise rural land uses and effectively sterilise rural land. Incompatible land uses may also include uses that are acceptable in a rural zone but have a negative impact on other rural land uses. … There is a need to ensure that existing rural land uses are protected and landholders are able to exercise their operational needs effectively and appropriately.
…
Land use conflicts will be managed such that:
…
c)in the absence of sitespecific technical studies, buffer distances will be guided by the Environmental Protection Authority's Guidance Statement No. 3 Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses.
The site is within an area that is the subject of the Jandakot Structure Plan (2007) (JSP) published by the Western Australian Planning Commission. The purpose of the JSP is described in the summary on page ix of the JSP as follows:
The Western Australian Planning Commission is conscious that there is increasing pressure for development in the rural and undeveloped areas of the south-west corridor that are not necessarily consistent with the aims of the Jandakot Land Use and Water Management Strategy (WAPC 1995). This structure plan therefore seeks to coordinate and plan the development expectations of the region while balancing environmental constraints, conservation, infrastructure provision and lifestyle, and community and neighbourhood objectives.
The structure plan provides a guide to the future development of the area and management of key environmental issues. It includes potential development areas, road networks, major community facilities, conservation and Bush Forever areas, and a neighbourhood structure. It also provides proposals for the implementation of the plan such as zoning mechanisms, staging, and financial and management arrangements.
At page 3 of the JSP it is explained that:
The structure plan will be used by state and local government agencies as a basis for the long-term planning of the area by:
•providing a prescription for development;
•identifying indicative areas to be set aside as open space;
• identifying environmental and conservation principles and objectives;
•providing for community infrastructure;
•establishing the basis for subsequent Metropolitan Region Scheme (MRS) amendments;
•providing a context for local government town planning scheme amendments;
• identifying future development areas; and
• nominating physical servicing infrastructure requirements.
…
The Jandakot Structure Plan has no statutory effect. It has been adopted by the WAPC as a basis for amendments to the MRS and for consideration of outline development plans/local structure plans and subsequent subdivision applications on appropriately zoned land.
In the final structure plan shown in Figure 9 of the JSP the site is located within an area identified as 'Rural Economic Living'. The term 'Rural Economic Living' is not defined in the JSP. In Part 7 of the JSP, which describes the final structure plan, there is no reference to 'Rural Economic Living'.
In the text of the JSP it also identified that it is proposed for there to be a potential future urban area, described in the JSP as the 'Oakford Village' or the 'Oakford Rural Village', in the area near to, although slightly north of, the site (see Figure 8 of the JSP). It is described in the JSP as being located generally in the vicinity of Thomas and Nicholson Roads.
On page 60 of the JSP it is stated that '[a] ruralliving zone, south of the Oakford Rural Village is proposed to accommodate rural activities that require medium-large sized lots'. The area identified as 'Rural Economic Living' on the final structure plan consists of the area identified on the preferred concept plan (Figure 8 of the JSP) as an urban village and an area of land to the south of that village.
It would seem, therefore, that the 'Rural Economic Living' must mean an area that includes an urban village (Oakford Village) and a rural living zone to the south of that village.
At page 50 of the JSP, it is stated, in relation to the proposed Oakford Village:
A rural village was proposed in the draft [JSP] based upon the Shire of Serpentine-Jarrahdale Rural Strategy (1994). The proposed village was recognised as being subject to servicing and environmental constrains and would first be required to demonstrate how it can be efficiently served by transport, water, waste water disposal and energy infrastructure. It considered that urban development at Oakford is not achievable in the short to medium term.
Following this, it is stated that the proposed timing for the Oakford Village is '15+ years'.
Part 8 of the JSP relates to the implementation of the proposals for future urban zones within the JSP area. The JSP states that a number of steps need to be taken before development (in terms of future urban areas) proposed by the JSP can occur. In summary, it is identified that there must first be a Jandakot Water Resource Management Strategy prepared, then rezoning of the relevant areas under the MRS to urban (for those areas identified to be implemented more quickly) or urban deferred (for the longer term implementation areas) by the Western Australian Planning Commission. There will also be a need for amendments to be made to the relevant local government town planning schemes in relation to financial contributions and the development of appropriate local structure plans.
Following the publication of the JSP, the respondent adopted Local Planning Policy No 51: Oakford Rural Economic Living Area Planning Framework (LPP 51). The objectives of LPP 51 include:
a)Provide a framework to support implementation of the Rural Economic Living Area (RELA) identified by the Jandakot Structure Plan and the Oakford Rural Village identified within the Shire of Serpentine Jarrahdale Rural Strategy,
b)Provide a framework to explore opportunities for innovation in the development of a rural village and economic living area in the Oakford locality, and
c)`Provide guidance for the sequencing of planning and outlining matters to be addressed in planning for the Oakford Rural Village and the RELA.
d)To provide clarity and certainty to applicants, landowners, the broader community and Council with regard to Oakford, whilst ensuring a level of flexibility and providing a framework to respond to changes in strategic direction.
LPP 51 divides most of the area identified in the JSP as the Rural Economic Living area into five precincts. Precincts 1 and 2 are identified as a business area and a rural village and precincts 3 to 5 are identified as Rural Economic Living Areas. In relation to these latter precincts, it is stated at cl 5.1.7 of LPP 51 that 'planning for precincts three, four and five shall be consistent with the vision of providing the environment for locally based rural living partly or fully sustained by rural production'.
The location of the precincts is identified on map 1 of LPP 51. The site is located within precinct 4. Precinct 1 (the business area) is located adjacent to the intersection between Thomas Road and Nicholson Road to the northeast of the site and at the most northerly part of the Rural Economic Living area. Precinct 2 (the rural village area) is also located to the northeast of the site, being east of Nicholson Road, north of Abernethy Road and south of Thomas Road.
The respondent also has a Rural Strategy, which was prepared in 1994 and reviewed in 2013 (Exhibit 2). In the 2013 review of the Rural Strategy (Review), the site is identified in the Rural Strategy Map at Figure 4.1 of the Review as falling within an area identified as 'Subject to Future Investigation'. The site is also identified in the map on page 54 of the review as being within the Rural Policy Area.
The objectives of the Rural Policy Area are listed on page 13 of the Review as:
•To retain and maintain traditional agricultural uses in this Policy Area.
•To promote alternative agricultural uses, particularly those that have less land degradation and higher commercial viability.
•To prevent the further fragmentation of land through subdivision and thus retain the remaining large lots for future rural use.
•To retain and enhance the rural lifestyle and character of the area.
•To protect Local Natural Areas and encourage revegetation.
The parties disagreed about the continuing relevance of the proposed Oakford Village.
The respondent says that it is still very much part of the local strategy for the area and, as such, having regard to generic buffer requirements required for a liquid waste facility, the proposed development could detrimentally impact on the implementation of that strategy. It says that any approval for the proposed development must be time limited so as to not impede orderly and proper planning for the area.
The applicant says that the proposed Oakford Village has not been identified in any of the recent State level planning instruments (the area is not shown as urban on the Outer Metropolitan Perth and Peel Subregional Strategy (2010) or the Draft South Metropolitan Peel Subregional Planning Framework (2015)) and is therefore not at this stage a seriously entertained planning proposal, at least at State level.
Issues
The respondent identified the specific issues for determination in this application to be as follows.
1)Is the proposed noise attenuation barrier acceptable?
2)Does the application adequately address potential noise emissions?
3)Does the application adequately address the risk to the environment?
4)Does the application adequately address the air quality?
5)Does the proposed method of dust suppression give rise to a potential risk to human health or the environment?
6)Should the term of approval be time limited?
The applicant did not disagree with that formulation of the issues.
Of course this list of questions has to be understood within the context of the broader issue of whether the correct and preferable decision is that the application for the proposed development should be refused or approved (subject to any conditions) having regard the relevant factors identified in cl 67 of Sch 2 of the LPS Regulations.
The Tribunal accepts that the first five questions identified above are all relevantly raised by the factors identified in cl 67 of Sch 2 of the LPS Regulations.
Question 6, in relation to the question of whether any approval should be time limited, seems to us to be a shorthand reference to whether the relevant planning framework requires the Tribunal to give weight to the proposed future Oakford Village and the impact, if any, the proposed development would have on that proposal. If weight should be given to the proposal, and if the proposed development would detrimentally impact on the ability to implement a future Oakford Village, can a condition be imposed on the proposed development that would allow the proposed development to be consistent with orderly and proper planning? Looked at this way, this is a question that the Tribunal must also consider pursuant to cl 67 of Sch 2 of the LPS Regulations.
Noise
The first two of the questions posed by the respondent relate to the issue of noise created by the proposed development and the amenity impacts of that noise and of the planned noise attenuation barrier.
Amenity impact of noise
The evidence before the Tribunal in relation to noise associated with the proposed development is as follows.
The applicant engaged Herring Storer Acoustics to prepare an assessment in relation to trucks entering and leaving the site via the battleaxe leg road. It is stated in the letter to the applicant from Herring Storer Acoustics, dated 14 April 2015 (Exhibit 2), that the assessment covers whether the assumed noise of trucks travelling on the private road, as received at the residences located on Lots 14 and 15 King Road, would be compliant with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).
It was concluded, based on modelling using an assumed 24 truck movements per day, that the noise received at the residence located on Lot 15 King Road would comply with the Noise Regulations so long as there were not more than six truck movements per hour. However, the noise received at the residence on Lot 14 King Road would not comply. Herring Storer Acoustics recommended that a noise attenuation barrier in the form of an earth bund located between the battle-axe leg road and the residence on Lot 14 King Road, with a total length of 140 metres, should be incorporated into the proposed development. Modelling with this assumed noise attenuation barrier in place concluded that the noise received at Lot 14 King Road would then be compliant with the Noise Regulations, so long as there were not more than six truck movements per hour.
Mr Terry George, a mechanical engineer and Director of Lloyd George Acoustics, carried out a 'peer review' of the Herring Storer Acoustics noise assessment (Exhibit 7). He noted, amongst other things, that there had been no assessment of the noise associated with servicing of vehicles and of the pump operation associated with the liquid waste aspect of the proposed development. In addition, he did not think that the noise associated with use of a loader in relation to the landscape goods stockpile aspect of the proposed development had been appropriately assessed.
At the hearing, Mr George stated that he did not think that noise from the workshop area would be a significant issue (T:5; 03.12.15). Mr Reynolds agreed. He said (T:6; 03.12.15):
I did some quick calculations on my models form some of the noise sources, like an impact wrench and angle grinder, and I came up with the fact that they would quite easily comply at those sorts of distances. And that recommendation for buffer for transport depot of 200 metres and that guidance of about 200 metres seemed to be about correct to me. So I wouldn't expect it to be a problem at those sorts of distances
Both of the noise experts agreed that the noise from the pumps used to transfer liquid waste may or may not be able to comply with the Noise Regulations. Relevant parts of their evidence at the hearing on this issue are as follows (T:5-7; 03.12.15):
GEORGE MR: [T]he only ones I've come across are the ones at service stations that are feeding the LPG gas. They are noisy.
…
GEORGE MR: Now, that by itself would probably be close to complying at those sorts of distances. But whether these pumps are the same, I don't know.
REYNOLDS MR: … So the pump is probably I would say probably the only one because it's more of a low frequencytype noise and it tends to travel a bit further, and that could be [managed] by doing it on the other side of the truck instead of the residence side, putting a bund up. It can be managed.
EDDY MS: All right. So do you have experience with the sort of trucktotruck pump? Is that something you've measured before?
MR REYNOLDS: No. We've measured other type pumps on trucks. I'm not sure exactly which type they're doing. But they can be quite Terry is quite right. They can be quite loud.
…
MR GEORGE: I think that some form of bund would be required. I don't or it might even just be that the if it's one of the ones where the pump is actually on the truck, it might just be that the truck needs to face so that the pump is on the you know, the east side so the noise to the west is already shielded by the truck. It might be something as simple as that, just orientation.
But I think the sort of levels off the LPG gas site are the same. I did some quick numbers and its borderline. But, you know, if you apply the tonal penalty, you know, I think it would need something. But, again, it might just be truck orientation.
These opinions remained substantially the same upon further questioning by the representatives of the parties.
The Tribunal is satisfied that noise experts agreed there was some likelihood that, without appropriate control measures, noise from the pumping of liquid waste might cause a level of noise as received at residences in the vicinity of the site that would not comply with the Noise Regulations.
When the experts were asked to assume that:
1)there would be no pump noise when the truck delivering the liquid waste was using the ramp for the transfer because the ramp was designed for gravity transfer of liquid waste without a pump; and
2)when a pump was to be used for the liquid waste transfer it would occur at ground level adjacent to the eastern side of the ramp,
they stated that they considered that this would be sufficient to attenuate any pump noise so as to be compliant with the Noise Regulations (T:3738; 03.12.15). However, given that the experts had advised the Tribunal that they did not have any knowledge of the actual pumps to be used, the length of time they could be pumping and the noise created by them, the Tribunal is not reasonably satisfied that it can accept their opinion on this point.
The Tribunal is not satisfied that, even if the use of the pumps to transfer liquid waste is required to occur only in the location adjacent to the eastern side of the transfer ramp, the associated noise will comply with the Noise Regulations and will not cause an amenity impact.
In relation to noise associated with the loader that would be used to move landscaping materials to and from the location where it is to be stockpiled, the experts did not substantively disagree. There is an existing bund at the site that both experts considered would be likely to assist in attenuation of this particular noise. However, that bund is presently only about 1½ metres high and, as such, if a noise attenuation barrier is needed, Mr George considered that this would be unlikely to be high enough to achieve that. Mr Reynolds agreed that if noise attenuation was needed, the existing bund would likely not be sufficiently high. Mr George and Mr Reynolds agreed that the noise of the loader was likely to be a significant source of noise from the proposed operation in addition to the pumping noise and the truck noise (T:19; 03.12.15).
The Tribunal is satisfied that noise associated with the use of a loader on the site for the movement of landscaping goods could potentially cause an amenity impact if the noise is not compliant with the Noise Regulations.
In relation to both the pump noise and the loader noise, the Tribunal is satisfied that the issue can be dealt with by way of the imposition of a condition requiring production of a further report from a suitably qualified acoustic expert, showing how these noises, in context of the way in which they would occur within the proposed development and be received at nearby residences, will be able to be compliant with the Noise Regulations. This is because we accept the evidence of Mr George and Mr Reynolds that it is likely that these noises will be able to comply with the Noise Regulations, or be made to comply with the use of a noise attenuation barrier. In the circumstances of this case we are satisfied that because the likely location of a noise attenuation barrier, if it is necessary, will be sufficiently far within the site and distant from King Road, or any of the neighbouring residences, that any such barrier would not cause any visual amenity impact. Although it would have been preferable for the applicant to have obtained this information prior to the hearing of this matter, we consider that this is an unusual case where it is not necessary or appropriate to refuse the proposed development simply because of the absence of some limited aspects of the required noise assessment.
In relation to the noise associated with truck movements along the battleaxe leg road, there was again substantial agreement between the noise experts.
Mr George had raised in his peer review that Mr Reynolds had modelled the truck noise using a speed limit of 30 kilometres per hour. Mr George noted that the development application documents indicated an intended speed limit of 20 kilometres per hour on the private road. On this basis, Mr George had commented that the truck movements on the battle-axe leg road needed to be restricted to four movements per hour if this speed limit was to be used.
At the hearing it was clarified that in fact the experts were not disagreeing about the ability of this aspect of the proposed development to comply with the Noise Regulations. Both Mr Reynolds and Mr George agreed that, with the noise attenuation barrier (earth bund) in place as proposed, compliance with the Noise Regulations could be achieved.
This was subject to the speed of the trucks travelling the battleaxe leg road being limited to 20 kilometres per or 30 kilometres per hour. If the speed limit was 20 kilometres per hour, the number of truck movements per hour must be limited to four. If the speed limit was 30 kilometres per hour, the number of truck movements per hour must be limited to six.
The limitation of truck movements is necessary because the compliance with the Noise Regulations that was agreed depended on using the LA10 noise measurement. Using this measurement, the noise must only be present for less than 10% of the time. Thus there was a need to restrict the truck movements to ensure compliance using this measure. If more frequent truck movements were allowed, a different time measure for compliance with the Noise Regulations would have to be used, and as Mr Reynolds explained, '[Y]ou would need a lot higher bund, and then we would need a bund on the other side because it wouldn't comply with the other houses either' (T:13; 03.12.15).
The Tribunal accepts the evidence of Mr Reynolds and Mr George on the truck noise and the ability of that noise to comply with the Noise Regulations. They are appropriately qualified experts and they provided sufficient foundation by way of understandable reasoning to support their agreed conclusions.
The Tribunal finds that the noise attenuation barrier recommended by Mr Reynolds, and agreed as necessary by Mr George, is required. This is required to be a 2 metre high earth bund starting at the gate on the battleaxe leg road, located approximately 60 metres from King Road, extending for 140 metres in an easterly direction just inside the boundary of the battleaxe leg road with Lot 14 King Road. The Tribunal further finds that, subject to this noise attenuation barrier being in place, and subject to a limitation on truck movements (four per hour at a speed limit of 20 kilometres per hour or six per hour at a speed limit of 30 kilometres per hour), the truck movements on the battleaxe leg road are able to comply with the Noise Regulations.
Of course, as was stated in Land Alliance Pty Ltd v City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 (Land Alliance), at [39] '[c]ompliance with the Noise Regulations does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense'.
In this case, the existing amenity of the locality is influenced by closeness to King Road, which is a designated restricted access vehicle route. This designation allows the movement of large trucks along that road. Mr Goff stated, and it was not disputed, that 'the properties along and near King Road are therefore affected by truck movements including noise generated by such vehicles. This activity forms part of the character of the subject locality …' (Exhibit 18, at [55]). This statement is consistent with the fact that there are already three transport depots as well as a number of other 'light industrial' or 'commercial' type uses occurring within this locality.
The respondent, in our view, appropriately, did not seek to suggest that the amenity of the locality was such that truck noise, at a level which would be compliant with the Noise Regulations, would have an adverse effect on amenity.
There was no evidence put before the Tribunal to the effect that any neighbours or other residents within the locality were concerned about amenity impact because of truck noise.
The Tribunal finds that the noise of truck movements along the battleaxe leg road could be made to be compliant with the Noise Regulations and, if it was, it would not have an adverse impact on the amenity of the locality.
However, a question remains as to whether the Tribunal can be satisfied that the conditions necessary for there to be no adverse impact on amenity can, in reality, be achieved.
In order for the truck noise on the battle-axe leg road to be compliant with the Noise Regulations, any approval of the proposed development would need to contain a condition requiring truck movements on the battle-axe leg road to be limited, by way of number and speed, as identified by the noise experts.
The respondent submits that such a condition would be impractical and difficult to enforce. It relies on evidence to that effect by Mr Goff and Mr Mack (T:110; 01.12.15 and T:70; 02.12.15 respectively).
The respondent cited Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) LGERA 414 at 423 and Land Alliance at [42] in support of its submission that the Tribunal should be cautious about imposing conditions which will provide difficulty for the respondent to police or which strike at the heart of the use applied for. The respondent submitted that truck movement is a fundamental aspect of a transport depot and that, in the absence of a transport plan or evidence in relation to how truck movements will be managed, the Tribunal cannot be satisfied that a condition of the kind necessary would be workable or enforceable. It submitted that in the circumstances such a condition would 'strike at the heart' of the proposed development.
The applicant submits that in fact there is no need to impose any condition in relation to truck movements and vehicle speed with respect to the battle-axe leg road. It says that the noise assessment showed that it was possible to achieve compliance with the Noise Regulations. Citing Hasan v Moreland City Council [2005] VCAT 1931 at [20] (which was referred to by the Tribunal in Mann and City of Rockingham [2006] WASAT 115), it submitted that it is inappropriate to impose conditions requiring compliance with otherwise applicable legislative provisions because such conditions have no utility.
In its written closing submissions the applicant stated that the proposed transport depot will have three to four movements per hour, which, if subject to a 30 kilometre per hour speed limit, would mean that there would be approximately half of the maximum number of truck movements on the battleaxe leg road. It was further stated that trucks other than 'Bdouble' trucks could use the internal road through the site accessed from Abernethy Road as well as the battle-axe leg road. It said that truck movements would be scheduled and, where necessary, trucks could be directed to use the Abernethy Road access in order to prevent too many truck movements on the battle-axe leg road.
These statements are in fact not submissions, but rather are in the nature of evidence in relation to how the applicant proposes to manage truck movements. If the rules of evidence applied, the Tribunal would have to disregard these facts. However, as that is not the case, as the applicant was represented by its directors who are not lawyers, and because there was an oral hearing following the exchange of written submissions, it seems to us reasonable in the circumstances to have regard to these matters. In having regard to them, the Tribunal does not accept them as proved fact, but rather as supplementary information regarding how the applicant intends to operate the proposed development.
The Tribunal is not persuaded by the applicant's submission that there is no requirement to condition any approval of the proposed development on a requirement that the applicant ensures that truck movements on the battle-axe leg road are controlled in the way necessary to ensure compliance with the Noise Regulations. While it is the case that it would not be necessary to impose a condition requiring compliance with the Noise Regulations, in this case the Tribunal can only be satisfied that the proposed development will not have a negative amenity impact as result of vehicle noise if it is ensured that specific measures are imposed. These measures are not standard or usual measures that one would expect to be taken in the operation of a transport depot. Nor are they identified as measures that will be followed in a transport plan or other similar document attached to the development application. It is appropriate, therefore, for any approval to require compliance with those specific measures. The Tribunal considers that approval could not be given to the proposed development without such a condition being imposed.
The Tribunal is not satisfied that the imposition of a condition requiring the applicant to ensure that there are no more than six truck movements per hour on the battle-axe leg road with the speed limit fixed on that road at 30 kilometres per hour would be impractical or unenforceable. We note the evidence referred to by the respondent in support of its submission to the contrary, however, we are not satisfied that this issue is a matter of expertise that can be properly the subject of opinion evidence.
It seems to us, as a matter of common sense, that a specific condition requiring the applicant to ensure vehicle movements on the battle-axe leg road comply with a particular speed limit, and that they do not exceed a specified number of vehicle movements per hour, can easily be measured should the need arise. It seems likely that if the occupants of the residences that would be affected by a failure to comply with such a condition made a complaint, the respondent could send one of its officers to investigate that complaint. To ensure that, if the need arose for the respondent's officers to investigate, they are able to access the applicant's land in order to lay and monitor relevant measurements devices on the battle-axe leg road, the applicant should be required to allow this to occur as a condition of approval.
Amenity impact of noise attenuation barrier
Mr Goff and Mr Hockley disagreed as to whether the proposed noise attenuation barrier would have an adverse impact on the visual amenity of the locality.
Mr Hockley was of the view that solid bunds or walls are not characteristic of the locality and that, whether or not the bund was vegetated, it would remain a large unbroken structure in close proximity to a neighbouring dwelling to the north. As such, it would have a detrimental impact on visual amenity (Exhibit 8, at [82] [89] and Exhibit 11, at [28]). Mr Hockley accepted that there were examples of solid walls and bunds within the locality but it was his opinion that they were not characteristic of the locality (T:70; 01.12.15). He maintained that, despite these other examples of solid walls and bunds, the introduction of a bund as proposed by the applicant would have an adverse impact on amenity.
In oral evidence, it became apparent that Mr Hockley considered that the proposed earth bund would also have an adverse impact on visual amenity from the perspective of travellers along King Road. Initially he formed this opinion based on an assumption that the proposed bund would start from a position immediately adjacent to King Road (T:88; 01.12.15). However, Mr Hockley considered that if the bund was to start approximately 60 metres to the east of King Road as opposed to immediately adjacent to the road, there would still be an amenity impact from King Road 'to a certain extent'. He did not think the starting point of the bund in relation to King Road would have any impact on the visual amenity of the bund from the perspective of the neighbouring lot.
Mr Goff agreed that an earth bund that was not landscaped would have an adverse impact on the amenity of the locality (T:70; 01.12.15). However, in his opinion, if the bund is landscaped and the vegetation is adequately maintained, the bund would not have an unacceptable impact on amenity. In his view this was so because the proposed bund is at least 19 metres from the house to the north and with the landscaping it will appear as a belt of vegetation. In addition, it was his view that the bund would not interfere with access to sunlight on the lot to the north (Exhibit 11, at [29]).
In relation to the perspective of a traveller on King Road, Mr Goff did not consider that the proposed bund would have any impact on visual amenity. He stated that, with landscaping, the bund would have a similar visual appearance as the thick and tall (2 to 3 metre) vegetation existing within the reserve on the opposite side of King Road (T:70; 01.12.15).
The Tribunal had before it a number of photographs of other bunds and of solid wall features found within the locality (Exhibit 13). The Tribunal also conducted a view of the locality. Having regard to these, the Tribunal does not accept Mr Hockley's opinion that such features are not characteristic of the locality. As such, we were satisfied that it was appropriate to have regard to the existence of features of this type within the locality, although not as a dominant aspect, when determining whether or not the proposed bund would have an adverse impact on the visual amenity of the locality.
The Tribunal preferred the opinion of Mr Goff in relation to the visual impact of the proposed bund. We are satisfied that his opinion had proper regard to the locality as a whole. His opinion that it was only if the proposed bund was landscaped with native vegetation that it would not have an adverse impact made sense to us. Having regard to the existence of large areas of thick and tall vegetation within the locality, we agreed that the impact of the proposed bund, from the perspective of the traveller along King Road, and from the perspective of the neighbouring lot owners, would not be negative if, in fact, the bund appeared, for all intents and purposes, to be a thick layer of native vegetation consistent with the surroundings.
The Tribunal finds that the proposed noise attenuation barrier would not have an adverse impact on the visual amenity of the locality so long as it is landscaped and maintained appropriately with native vegetation that was visually compatible with other vegetation in the locality.
Risk to the environment
The respondent submitted that, particularly in the context of the history of the site and its current status as potentially contaminated, the lack of detail in the application about the amounts of liquid waste that would be received at the site, the types of liquid waste that would be received and how liquid waste would be managed (in relation to potential mixing of incompatible wastes and also spill management) meant that the Tribunal could not be satisfied that there would not be a risk to the environment created by the proposed development.
In relation to the stockpiling aspect of the proposed development, the respondent submitted that, in the context of the site having been classified as possibly contaminated, it would be necessary to require the hardstand upon which the landscaping goods were to be stored to be of sufficient standard to create an effectively impenetrable barrier between the goods and the groundwater.
The applicant submitted that the type of liquid waste that would be brought to the site was subject to control by way of the licencing of the truck that carries the liquid waste. It was submitted that the relevant licencing system provided conditions for the aggregation and transportation of controlled liquid wastes. Thus the Tribunal could be satisfied that there was an appropriate mechanism in place for ensuring that this aspect of the proposed development did not create any environmental risk.
In relation to the stockpiling of landscaping goods, the applicant submitted that there was no risk to the environment created by storing such goods. Completed compost, it was argued, does not present the same issues as involved in the processes of creating such compost. The applicant submitted that other facilities within the local government area, and within the locality, had been approved by the respondent to store landscaping goods without any condition being imposed requiring the goods to be stored on an impenetrable hardstand. The applicant asserted that there was no reason why this site should be treated differently from other facilities doing essentially the same thing.
In relation to environmental issues, the applicant relied on Dr Peter Keating to give evidence. Dr Keating has a PhD in biochemistry and over 30 years of experience in soil science, biotechnology and industrial microbiology as it relates to land use planning for agriculture, horticulture, wildlife conservation and urban development. He is also experienced in developing composting technology and in issues related to groundwater on the Swan Coastal plain.
The respondent relied on Mr Andrew Mack to give evidence in relation to environmental issues. Mr Mack has a Bachelor of Environmental Engineering and has worked in a number of government departments as well as private consulting firms. He has extensive environmental and regulatory experience with respect to projects involving statutory approvals, compliance, environmental monitoring and management.
Following a joint conferral in the absence of the parties or their representatives, Dr Keating and Mr Mack relevantly agreed that:
1)incompatible liquid wastes should not be sorted or mixed onsite and there are specific statutory requirements that preclude such activities from occurring;
2)if liquid waste aggregated in tanks onsite was restricted to grease-trap waste, septic waste and fertiliser plant washdown waste the risk of hazardous outcomes of the activity would be minimal;
3)any liquid waste brought to site should only be dealt with via tanker to tanker transfer and not aggregated or mixed on site by any other means;
4)any spill containment and management was critical to the safety of liquid waste transfer as well as protecting the environment; and
5)bunding local to the liquid waste transfer area will reduce the risk to the environment of accidental spillage.
At the hearing, both Mr Mack and Dr Keating accepted that bringing to the site controlled liquid wastes (that is, liquid waste subject to the regulatory regime imposed by the Environmental Protection (Controlled Waste) Regulations 2004 (WA)), transferring that waste to another vehicle and any mixing of wastes put into that second vehicle would be subject to strict regulation under the regulatory regime. They considered that this regime is such that if the appropriate permits were in place, this would impose the necessary safety or control for that activity from an environmental perspective other than in relation to spill management.
Mr Mack and Dr Keating were both of the view that even with that regime in place, it would be necessary to have an appropriate contingency in place for the proper management of any spills. Dr Keating and Mr Mack agreed that it would be necessary for the proposed development to have an appropriate spill management plan that would ensure that any spill was cleaned up rapidly. Mr Mack stated that the existing spill management plan was insufficient on the basis that it was generic in nature and did not adequately address spill management in the context of what would actually occur at site (Exhibit 6). Having considered the spill management plan, the Tribunal agrees with Mr Mack's opinion.
19.A landscape and vegetation management plan must be submitted to the Shire for approval. For the purpose of this condition a detailed landscape plan shall be drawn to a scale of 1:100 and shall show the location, number of and species names of proposed trees and shrubs, together with predicted survival rates. The plan must include information about how it is proposed the vegetation will be adequately maintained.
20.The applicant must allow the Shire to lay, monitor and collect any devices used for the measurement of vehicle speed and vehicle numbers on the battleaxe leg road in Lot 6 King Road so long as it has been given at least 24 hours' notice in writing from the Shire.
21.The approved landscape and vegetation management plan must be implemented throughout the continuation of the development.
22.The landscaping goods aspect of the approved development must be substantially commenced within two years commencing on the date of this approval.
23.The liquid waste transfer aspect of the approved development must be substantially commenced within three years commencing on the date of this approval.
I certify that this and the preceding [243] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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