BLAST-TECH AUSTRALIA and SHIRE OF SERPENTINEJARRAHDALE

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   BLAST-TECH AUSTRALIA and SHIRE OF SERPENTINEJARRAHDALE [2020] WASAT 157
MEMBER:   MS D QUINLAN, MEMBER
HEARD:   15 AND 16 SEPTEMBER 2020
DELIVERED          :   11 DECEMBER 2020
FILE NO/S:   DR 66 of 2020
BETWEEN:   BLAST-TECH AUSTRALIA
Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent

Catchwords:

Town planning - Classification of proposed land use - Warehouse or Transport Depot - Transfer of goods - Class 14S detonators - Whether consistent with Rural zone in local planning scheme - Whether consistent with draft local planning scheme - Whether consistent with rural strategy review - Whether consistent with draft local planning strategy - Whether consistent with State Planning Policy 2.5

Legislation:

Dangerous Goods Safety (Explosives) Regulations 2007 (WA)
Dangerous Goods Safety Act 2004 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(b), cl 67(zb)
Planning and Development Act 2005 (WA), s 83, s 84, s 242, s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2, cl 3.2.2, cl 3.2.4, cl 3.2.5, cl 5.10.1, cl 7.1, Appendix 1
State Administrative Tribunal Act 2004 (WA), s 27, s 29(3), s 31(1)

Result:

Decision set aside and approval granted

Summary of Tribunal's decision:

The proceedings arose in the Tribunal following a refusal on 26 March 2020 by the Shire of Serpentine-Jarrahdale (Shire) to grant planning approval for what the applicant described as a 'Transport Depot' (proposed development) on Lot 597 Walker Road and adjoining Lots 598 and 599 Karnup Road, Serpentine (subject site).
At hearing, an issue in dispute was the appropriate land use classification of the proposed development under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2). The Shire submitted the appropriate classification was 'Warehouse' which is not permitted in the Rural zone. The applicant submitted the appropriate classification was 'Transport Depot' which is capable of approval in the exercise of discretion after notice has been given.
The Tribunal concluded that the proposed development was consistent with the existing and emerging planning framework. In relation to the issues identified the Tribunal concluded:

the correct classification of the proposed land use was 'Transport Depot' (rather than 'Warehouse') under the definitions in both TPS 2 or the equivalent use classes in draft Shire of Serpentine-Jarrahdale Local Planning Scheme No 3 (draft LPS 3);
the proposed development was consistent with the purpose and intent of the 'Rural' zone under TPS 2 and the objectives under draft LPS 3;
the proposed development was consistent with the Shire's Rural Strategy Review 2013;
the proposed development was consistent with the draft Shire of Serpentine-Jarrahdale Local Planning Strategy dated September 2019; and
the proposed development was consistent with State Planning Policy 2.5: Rural Planning.

In the exercise of the Tribunal's discretion to make the correct and preferable decision upon review and in weighing up the Tribunal's findings concerning each of the issues, the Tribunal concludes that the respondent's decision should be set aside and approval granted to the proposed development subject to suitable conditions.

Category: B

Representation:

Counsel:

Applicant	:	Mr J Algeri (planning advocate)
Respondent	:	Mr H Ruse (planning advocate)

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Direct Homes WA and Shire of SerpentineJarrahdale [2020] WASAT 128
Evangel Christian Fellowship Inc and Shire of Serpentine Jarrahdale [2017] WASAT 159

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal following a refusal on 26 March 2020 by the Shire of SerpentineJarrahdale (Shire or respondent) of an application for planning approval made by BlastTech Australia (applicant) seeking approval for what was described by the applicant as a 'Transport Depot' (proposed development). The proposed development is situated on Lot 597 Walker Road and adjoining Lots 598 and 599 Karnup Road, Serpentine (subject site).

Background facts

The proposed development was advertised for public comment in accordance with the requirements of TPS 2 with 19 submissions received from surrounding landowners objecting to the proposed development. The concerns raised in the objections raised the following matters: nature of land use inappropriate in rural area safety, noise from trucks, security/criminal behaviour, bushfire risk, inconsistent with rural lifestyle and road safety due to increased traffic.
Following assessment of the proposed development, the Shire's officers prepared a report for Council recommending refusal. At its ordinary council meeting held on 26 March 2020, Council considered the application and resolved (seven votes to two) to refuse the application as recommended by the Shire's planning officer for the following reasons:
a.The proposed development is inconsistent with the objective of the 'Rural' zone in accordance with Clause 5.10.1 of the Shire of Serpentine Jarrahdale Town Planning Scheme No. 2. The proposed use is not considered to be a rural pursuit or an associated activity that supports the carrying out of rural pursuits in the 'Rural' zone and such is inconsistent with the purpose and intent of the 'Rural' zone.
b.The proposal is contrary to Clause 67 (n) of the deemed provision which indicates due regard should be given to the amenity of the locality including the character of the locality and the environmental impacts of the development. The proposed development is not considered an appropriate land use due to its inconsistency with rural uses that combine to form the rural character of the locality.
c.The proposal is inconsistent with the objectives of the Rural Strategy Review 2013, and would adversely impact upon the rural character of the area.
On 8 April 2020, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (the PD Act), the applicant lodged an application in the Tribunal for a review of that refusal by the Shire.
On 24 April 2020, at the first directions hearing of these proceedings, the Tribunal directed the applicant to provide further information to the Shire and then invited the Shire to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At its ordinary council meeting on 15 June 2020, Council resolved (again, seven votes to two) to affirm its decision of 16 March 2020 and refuse the proposed development for the same reasons set out above.
On 3 September 2020, a submission was lodged by expert town planner, Mr Aaron Lohman on behalf of Mr Peter Rifici (Rifici submission) who owns Lots 786-788 Walker Road, Serpentine (Rifici property). On 11 September 2020, pursuant to s 242 of the PD Act Senior Member Willey, received the Rifici submission and it was subsequently marked as Exhibit 10 in the proceedings. The Rifici submission will be discussed later in these reasons.
Section 27 of the SAT Act provides that the Tribunal is to consider the matter afresh, is not confined to matters before the original decisionmaker, is not limited by the reasons provided by the original decision-maker or the grounds in the application and is to produce the correct and preferable decision at the time of the review.
In the exercise of the Tribunal's review jurisdiction, pursuant to s 29(3) of the SAT Act, the Tribunal may affirm, vary or set aside the decision that is being reviewed. If the Tribunal sets aside the decision being reviewed it may substitute its own decision or send the matter back for reconsideration. The Tribunal may also, in any case, make any order the Tribunal considers appropriate.

Issues to be determined

The primary issue to be determined by the Tribunal in these proceedings is whether it is appropriate in the exercise of the Tribunal's discretion upon review, when making the correct and preferable decision at the time of the review, to approve the proposed development. In determining the primary issue, the Tribunal must consider the following relevant five sub-issues as identified by the parties:
1)Whether the correct classification of the proposed land use is 'Warehouse' or 'Transport Depot' under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2) or the equivalent use classes in draft Shire of Serpentine-Jarrahdale Local Planning Scheme No 3 (draft LPS 3).
2)Whether the proposed development is consistent with the purpose and intent of the 'Rural' zone under TPS 2 and/or the objectives under draft LPS 3
3)Whether the proposed development is consistent with the Shire's Rural Strategy Review 2013 (Rural Strategy).
4)Whether the proposed development is consistent with the draft Shire of SerpentineJarrahdale Local Planning Strategy dated September 2019 (draft Strategy).
5)Whether the proposed development is consistent with State Planning Policy 2.5: Rural Planning (SPP 2.5).

The subject site

The subject site can be described more particularly as follows:
a)has a combined area of 52.77 hectares;
b)is bound by Walker Road to the east and Karnup Road to the south;
c)Lots 597 and 598 contain rural outbuildings and are currently used for equestrian activities; and
d)Lot 599 is currently vacant.
During the hearing the Tribunal had the benefit of a view of the subject site and locality.
On 15 March 2016 development approval was granted under delegated authority for a Transport Depot on Lot 599. The use as approved did not permit storage of any explosives. The use was never commenced and the approval has since lapsed.

The proposed development

The proposed development can be described as follows:
a)It involves the construction of a 140m² purpose built storage unit (storage unit) with security fencing and an area of hardstand within Lot 597.
b)It is set back approximately 222 metres from the northern boundary and 240 metres from the western boundary of the subject site.
c)There is no residence on the subject site and the nearest neighbour's residence is 585 metres from the proposed development.
d)Vehicle access to the storage unit will be from Karnup Road, through Lot 599 via an existing access driveway.
e)The following operational activities would occur:
i)the receipt of goods comprising low-grade explosive products being Class 1.4s detonators (detonators) to the subject site from the Fremantle Port in a retrofitted sea container (container) which will contain approximately 30kg 60kg of detonators;
ii)the transfer of the detonators from the container to a purpose built explosives truck (explosives truck) whilst both the container and the explosives truck are situated on the hardstand area (transfer of the detonators);
iii)the transport of the transferred detonators in the explosives truck from the subject site to the main storage facility in Kalgoorlie with occasional delivery to local customers meaning the Kalgoorlie storage facility could sometimes be bypassed; and
iv)the occasional, or temporary, storage of the detonators in the storage unit when the detonators cannot be transported to the subject site, and transferred into the explosives truck and driven to the final destination within the same day.
f)Only one delivery per month of a container with the detonators would be made to the subject site. When a delivery occurs, four employees and a truck driver would attend the subject site for the transfer of the detonators usually taking approximately two hours, but never more than four hours, with such transfer of the detonators commencing between the hours of 9:00 am and 4:00 pm Monday to Sunday.
g)There are a total of three vehicles associated with the proposed development. These include: the truck that delivers the container to the subject site, the forklift that unloads the detonators from the container and the explosives truck that transports the detonators from the subject site.

Planning framework

Metropolitan Region Scheme

The subject site is zoned 'Rural' under the Metropolitan Region Scheme.

TPS 2 and draft LPS 3

The subject site is zoned 'Rural' under TPS 2 and draft LPS 3.
Clause 5.10.1 of TPS 2 sets out the objective of the Rural zone, as follows:
The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
A 'Transport Depot' is defined in Appendix 1 of TPS 2 as follows:
Transport Depot - means 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.
A 'Commercial Vehicle” is defined in Appendix 1 of TPS 2 as follows:
Commercial Vehicle means a vehicle whether licensed or not which is used or designed for use for business, trade or commercial purposes or in conjunction with a business, trade or profession, and without limiting the generality of the foregoing includes any van, truck, trailer, tractor and any attachment to any of them or any article designed to be an attachment to any of them, and any bus or any other passenger vehicle, or any earthmoving machine whether self-propelled or not, but the term shall not include a vehicle designed for use as a passenger car or a trailer or other thing most commonly used as an attachment to a passenger car, or a van, utility or a light truck which is rated by the manufacturer as being suitable to carry loads of not more than three (3) tonnes.
A 'Warehouse' is defined under Appendix 1 TPS 2 as:
Warehouse means land and buildings wherein goods are stored and may be offered for sale by wholesale.
Clause 3.2 and Table 1 Zoning Table of TPS 2 together provide that a Transport Depot is an 'SA' use in the Rural zone and a Warehouse is not permitted in the Rural zone. Clause 3.2.2 of TPS 2 provides that:
'SA'means that the Council may, at its discretion, permit the use after notice of the application has been given in accordance with Clause 64 of the Deemed Provisions;
Clause 3.2.4 of TPS 2 provides that where the Zoning Table mentions a particular use class then the use is excluded from any other use class even though it may fit within the general terms of that other use class.
Clause 3.2.5 provides that where a use is not specifically mentioned in the Zoning Table and cannot be reasonable determined as falling within the interpretation of one of the use categories the Council may determine the use is not consistent with the objectives and purpose of the particular zone and is, therefore, not permitted.
It is common ground that draft LPS 3 has been substantially progressed. Draft LPS 3 has been modified as required by the Western Australian Planning Commission (WAPC) and that modified version of draft LPS 3 has completed the consultation and advertising process as required under s 83 and s 84 of the PD Act. At a special council meeting on 22 June 2020 the Council has made some further modifications to draft LPS3 and, pursuant to s 87 of the PD Act, that draft LPS 3 is presently before the Minister for Planning (Minister) for approval or, potentially, for modifications to be required by the Minister.
Relevant to these proceedings, the material difference between TPS 2 and draft LPS 3 are the more extensive objectives for the Rural zone under Table 2 of cl 16 in draft LPS 3 as follows:
•To provide for the maintenance or enhancement of specific local rural character.
•To protect and accommodate broad acre agricultural activities such as cropping and grazing and intensive uses such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility with the primary use.
•To maintain and enhance the environmental qualities of the landscape, vegetation, soils and water bodies including groundwater, to protect sensitive areas especially the natural valley and watercourse systems from damage.
•To provide for the operation and development of existing, future and potential rural land uses by limiting the introduction of sensitive land uses in the Rural zone.
•To provide for a limited range of non-rural land uses only where they have demonstrated a direct benefit to the local community and are compatible with surrounding rural uses.
(Tribunal's underlining of recently proposed modification)
The Tribunal has underlined certain words in the last objective for the Rural zone in draft LPS 3 to highlight the further modifications made by the Council at the special council meeting on 22 June 2020 to the version of draft LPS 3 that had previously been approved to be advertised by the WAPC. The Tribunal understands that these modifications were the only modifications relevant to these proceedings made by Council on 22 June 2020 that were the subject of some contention between the parties in these proceedings as to whether they will be accepted by the Minister and form part of the finalised version of draft LPS 3. These particular modifications will be discussed further later in these reasons.
The definition of 'transport depot' in Division 2 cl 55 of draft LPS 3 is as follows:
means premises used primarily for the parking or garaging of two (2) or more commercial vehicles including
(a)any ancillary maintenance or refuelling of those vehicles; and
(b)any ancillary storage of goods brought to the premises by those vehicles; and
(c)the transfer of goods or persons from one vehicle to another.
The definition of 'warehouse/storage' in Div 2 cl 55 of draft LPS 3 is as follows:
means premises including indoor facilities, outdoor facilities or open areas used for [-]
(a)the storage of goods, equipment, plant or materials; or
(b)the display or the sale by wholesale of goods.
Similarly to TPS 2, draft LPS 3 provides that a transport depot is an 'A' use in the Rural zone meaning the use is not permitted unless the local government has exercised its discretion under cl 64 of the deemed provisions (Deemed Provisions) in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) and a warehouse/storage is an 'X' use meaning it is not permitted in the Rural zone.

LPS Regulations

The LPS Regulations provide in Sch 2 a number of Deemed Provisions which are deemed to be included in the local planning scheme text.
The subclauses in cl 67 of the Deemed Provisions that are relevant matters for the Tribunal to have due regard to in these proceedings are, in summary, as follows:
•aims and provisions of the TPS 2 (a);
•requirement of orderly and proper planning including a proposed local planning scheme that has been advertised (b);
•any policy of the State (f);
•the amenity of the locality including the character of the locality (n)(ii);
•history of the site where development located (w);
•any submissions received (y); and
•any other planning consideration considered appropriate (z)(b).

SPP 2.5

By operation of cl 3.1(a) and cl 3.3(c) in SPP 2.5 the provisions of SPP 2.5 apply to the proposed development.
The policy intent of SPP 2.5 is set out in cl 2 as follows:
The purpose of this policy is to protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome.
The policy objectives are set out in cl 4 of SPP 2.5 as follows:
(a)support existing, expanded and future primary production through the protection of rural land, particularly priority agricultural land and land required for animal premises and/or the production of food;
(b)provide investment security for existing, expanded and future primary production and promote economic growth and regional development on rural land for rural land uses;
(c)outside of the Perth and Peel planning regions, secure significant basic raw material resources and provide for their extraction;
(d)provide a planning framework that comprehensively considers rural land and land uses, and facilitates consistent and timely decision-making;
(e)avoid and minimise land use conflicts;
(f)promote sustainable settlement in, and adjacent to, existing urban areas; and
(g)protect and sustainably manage environmental, landscape and water resource assets.

Rural Strategy

The Rural Strategy sets out the strategic planning framework for rural land within the Shire.
Clause 1.1 of the Rural Strategy provides that:
The overall purpose of the Rural Strategy is to preserve and enhance the Shire's rural character and its role as an important economic contributor to the Shire and broader region.
The subject site is situated within the 'Rural Policy Area' as described in the Rural Strategy. Clause 4.5 of the Rural Strategy provides that the objectives of the Rural Policy Area are:
•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.

Draft Strategy

The draft Strategy has been prepared alongside draft LPS 3. The draft Strategy was also granted final approval with modifications by the Council at a special council meeting on 22 June 2020 and sent to the WAPC for final approval.
Section 3.3 of the draft Strategy provides the following description of the 'Rural land use' category:
The Rural land use category provides for a full range of rural land uses, tourism opportunities, rural enterprise and the preservation of the natural landscape. Rural land facilitates agricultural production and the protection of the natural landscape. A significant proportion of the Shire is comprised of rural areas which are located in many of the undeveloped areas of the Shire where it is considered preferable for large lots to be retained. Rural enterprise area allow for the operation of rural and light industries on the same lot as a residential dwelling, enabling business and intensive agricultural industries.
…
Rural land including both agricultural and natural areas are central to the local economy, lifestyle opportunities and character of the Shire. The Shire considers it is important to maintain rural land in close proximity to Perth to accommodate various rural industries and food production activities for the growing population. It is important that rural land is preserved for this purpose and is not consumed by the encroachment of inappropriate activities or suburban expansion. Preserving the natural landscape is also an important function of the Rural land use category to maintain rural character.
…
[Rural Enterprise] areas seek to consolidate light industrial uses and intensive rural industries in designated locations to prevent these uses from developing in rural area and adversely affecting amenity … Emerging non-traditional rural activities should be encouraged in areas where they do no adversely impact on environmental or landscape quality and are appropriately managed to minimise offsite impacts. While it is recognised that the development of light industrial and intensive rural industries may impact visual amenity, such developments should utilise sustainable and innovative technologies to ensure the natural environment is not adversely affected and measures should be undertaken to enhance amenity.
Section 3.3.1 of the draft Strategy states the following objectives in protecting agricultural land:
+Protect large rural lots to ensure access to well positioned land for productive use is possible.
+Strengthen agricultural production as a significant economic contributor to the Shire and the broader region, promoting the Shire as a 'food bowl'.
+Promote alternative technologies and sustainable practice in agriculture and food production.
+Manage urban growth boundaries.
+Protect land for agricultural enterprises in proximity to Perth and its markets.
+Minimise or eliminate nutrient (particularly phosphorus) export into the Peel-Harvey Estuarine System.

The Shire's case

The Shire provided a statement of issues, facts and contentions, a bundle of documents and a witness statement from expert town planner, Ms Bianca Sandri.
The Shire submitted that the proper classification of the land use, Warehouse, is a prohibited use in the Rural zone and, therefore, is incapable of approval. Alternatively, if classified as a Transport Depot, the land use is still not consistent with the purpose and intent of the Rural zone in TPS 2, the objectives and designations set in the new planning framework and not consistent with the prevailing SPP 2.5 for Rural areas and should be refused on this basis.
More particularly, the Shire submitted that the proposed development should not be approved for the following reasons:
a)Issue 1 appropriate land use classification
The proposed development is not most appropriately classified as a Transport Depot as it involves construction of the storage unit and would include the storage of goods, which is not within the scope of the Transport Depot use class definition. Rather, the most appropriate land use classification is that of Warehouse, which is a prohibited use in the Rural zone in TPS 2. The DMIRS licence requires the construction of the purpose built storage unit to 'store authorised explosives' being 'Detonators'. Given the storage unit is an essential feature of the proposed development, and cannot reasonably be characterised as incidental, the proposed development is more appropriately classified as a Warehouse. It is acknowledged that the proposed development involves the transfer of goods from one vehicle to another vehicle, however it does not propose the regular parking or garaging of more than one commercial vehicle used or intended for use for the carriage of goods and does not involve the maintenance, repair or refuelling of vehicles which further supports the Warehouse classification rather than Transport Depot.
b)Issue 2 purpose and intent of the Rural zone
The proposed development is not consistent with the purpose and intent of the Rural zone. Land uses not directly rural in nature are considered only capable of approval where they directly serve the local rural community, thereby supporting rural pursuits or associated activities in the TPS 2 area: see Evangel Christian Fellowship Inc and Shire of Serpentine Jarrahdale [2017] WASAT 159 (Evangel and Shire of Serpentine-Jarrahdale). The proposed development application has no relationship with a rural pursuit nor is an activity that is carried out to serve the rural community within the TPS 2 area. Further, it is inherent in the purpose and intent of the Rural zone that generally primary production is supported, rural land has rural characteristics or values in addition to productive capacity which should be protected, rural land should be protected from intrusion by other uses which should be more appropriately located in non-rural areas and a change from a rural use to another use should be the subject of strategic planning in accordance with SPP 2.5.
c)Issue 3 Rural Strategy
The proposed development is inconsistent with the Rural Strategy as it does not maintain the integrity of the Shire's rural and agricultural character. The proposed development is inconsistent with the Rural Strategy, in that it is not a rural use of land but rather is a use of an industrial character that is not consistent with the existing rural character of the Rural Policy Area. Additionally, the proposed development would not promote the objectives of the Rural Policy Area as it would not retain and maintain traditional agricultural uses or promote alternative agricultural uses or retain and enhance the rural lifestyle and character of the area.
d)Issue 4 draft LPS
The proposed development is not consistent with draft LPS as it does not promote rural industries or food production activities and would allow the encroachment of inappropriate activities more properly accommodated in industrial areas.
e)Issue 5 SPP 2.5
The proposed development is not consistent with SPP 2.5 as it would not support existing, expanded and future primary production through the protection of rural land (cl 4(a)), would not avoid and minimise land use conflicts (cl 4(e)) and would introduce a commercial use unrelated to rural pursuits or associated activities of a type not contemplated by SPP 2.5.

The applicant's case

The applicant provided a reply to the Shire's statement of issues, facts and contentions, a bundle of documents as well as two witness statements, one from an expert town planner, Mr David Maiorana and one from the Director of the applicant, Mr Stephen Johnson.
The applicant submitted that the proper classification of the proposed development is as a Transport Depot which is not inconsistent with the objectives of the Rural zone or any other principle or aim of the existing and emerging planning framework. Accordingly, the applicant submitted, the correct and preferable decision would be for the application to be approved, subject to any relevant conditions.
The applicant submitted that the proposed development should be approved, in summary, for the following reasons:
a)Issue 1 appropriate land use classification
It was accepted that a Warehouse is a prohibited use in the Rural zone in TPS 2. However, the proposed development cannot be classified as a Warehouse under TPS2 or the similar definition of a warehouse/storage under draft LPS 3 as the storage of product is incidental and infrequent. The proposed development is more properly characterised as a Transport Depot as the transfer of goods from one vehicle to another is the main activity and the fundamental purpose of the application is not to store goods or to offer them for wholesale. The storage component of the proposed development is a contingency safety control as required by the Department of Mines, Industry Regulation and Safety (DMIRS). Storage will only occur in infrequent circumstances where the detonators cannot safely be transported to their destination within a given time frame (that is, transporting goods during daylight hours cannot be achieved, or issues with the availability of a licensed transportation vehicle, etc.). The definition of a Transport Depot in TPS 2 does not require all three limbs of the definition to be satisfied, only one or more. There are at least three vehicles associated with the proposed development which will often be on site at the same time. The explosives truck will often be garaged on-site, particularly whilst waiting for a new shipment of detonators;
When due regard is given to draft LPS 3, the Shire's arguments in respect to the storage component become redundant given definition of Transport Depot expressly contemplates ancillary storage.
b)Issue 2 purpose and intent of the Rural zone
It was common ground that the proposed development is not a 'rural pursuit'. The Shire has misunderstood the context of Evangel and Shire of SerpentineJarrahdale. The scale of the proposed development relevant to the overall area of the subject site, the distance to adjoining neighbours and a distinct lack of any amenity impacts should all be relevant considerations in the assessment of the substantive merits of the particular application when considering its appropriateness in the Rural zone. There is no statutory or reasonable basis to the Shire's assertion that 'conducted in the Scheme area' restricts such uses to those which directly serve the local rural community. In any event the applicant's deliveries can be state-wide, including to destinations within the Shire. TPS 2 does not require the proposed development to be a rural pursuit or be an activity associated with a rural pursuit. A Transport Depot is a discretionary land use in the Rural zone of TPS 2. Having regard to the nature, scale and context of the proposed development (0.02% percent of the total site area and only once a month truck movement) it would have no impact on the carrying out of the established rural pursuit already occurring on the subject site or surrounding properties.
When due regard is given to the objectives of the Rural zone in draft LPS3, the proposed development will:
•maintain and not negatively impact the specific local rural character;
•not damage and still accommodate the ability for broad acre agricultural activities;
•maintain and not negatively impact the environmental qualities of the landscape, vegetation and soils given the small footprint of the proposal;
•not impact the operation and development of existing, future and potential rural land uses by the introduction of a sensitive land use; and
•not be incompatible with surrounding rural uses given the nature, scale and context of the proposed development.
c)Issue 3 Rural Strategy
All Transport Depots could fundamentally be characterised as industrial in character and, having regard to the scale and context of the proposed development, it categorically has no impact whatsoever on the existing rural character of the Rural Policy Area. The proposed development does not offend the objectives of the Rural Policy Area on the basis that it does not impact on the retention and maintenance of the agricultural uses in the Rural Policy Area, it does not deny opportunities for the promotion of alternative agricultural uses on the site or surrounding properties and it does not have any impact on the rural lifestyle and character of the area.
d)Issue 4 draft LPS
The proposed development is not inconsistent with the draft LPS as having regard to its scale and context as it does not deny or prejudice the opportunities for rural industries or food production activities on the site or surrounding properties and it is not an encroachment of an inappropriate activity in the locality.
e)Issue 5 SPP 2.5
The proposed development does not offend the principles of SPP 2.5 as it does not prejudice existing, expanded and future primary production and it does not create any land use conflicts. Further, having regard to the nature, scale and context of the proposed development, it does not prejudice rural pursuits or associated activities of a type contemplated by SPP 2.5.

Witness evidence

Mr Johnson gave factual evidence concerning the proposed development, in summary, as follows:
a)The subject site was purchased and developed specifically for rural and equine pursuits as he and his wife breed racehorses on a commercial scale which they have done so in Serpentine area for over 25 years. The subject site will continue to be used for rural and equine pursuits which will not be impacted by the proposed development.
b)He is the managing director of the applicant with over 40 years' experience in the explosives industry. The applicant has been operating since 1998 as an importer and distributor of explosive products that are used extensively in the mining and construction industries. The client base is predominantly mining operations, particularly hard rock mines and quarries.
c)The depot is in Kalgoorlie which is generally, but not exclusively, where the detonators must be delivered. Currently the containers go straight to Kalgoorlie which is not a particularly efficient means of transport. Being able to transfer to the explosives truck is considered a safer means of transport.
d)The proposed development will likely involve two trucks (the container truck and the explosives truck) for two hours once per month. However, in the previous calendar year, the delivery frequency was only every two months.
e)These detonators are considered safe enough to also travel by passenger aircraft. The detonators do not sympathetically detonate which means it is not possible for a mass detonation to occur. The transfer of the sealed boxes from the container to the explosives truck will occur 500 metres from Karnup Road. The amount of detonators involved in each delivery will only be 2 to 3% of what is allowed under the Australian Standard 2187.1.
f)The industry regulator, DMIRS has raised no concerns with the proposed development and on 4 May 2020 issued a licence to store explosives for the incidental storage that may be required. The purpose built storage unit resulted from a DMIRS' recommendation to increase security of the transfer operations and is a responsible contingency designed to facilitate any unforeseen transport delays.
g)The proposed development presents no quantifiable risk to his neighbours or broader public.
The Tribunal observed Mr Johnson to be an open and honest witness whose evidence remained consistent during cross-examination. The Tribunal finds that it can accept and rely upon his evidence.
The Tribunal will detail and consider the expert planning opinions of Ms Sandri and Mr Maiorana later in these reasons in relation to each of the identified issues for consideration. However, The Tribunal notes that it was assisted by the opinions of both Ms Sandri and Mr Maiorana in reaching its decision as well as the professional approach taken by both of these two expert planning witnesses in their evidence before the Tribunal.

Rifici submission

The Rifici property is situated approximately 500 metres to the south east of the subject site.
The Rifici submission is a detailed submission prepared on behalf of Mr Rifici by expert town planner, Mr Lohman. The Rifici submission includes documentary evidence to substantiate the factual assertions within the submission. The Rifici submission appears to have a good understanding of the proposed development (including the grant of the DMIRS licence), however Mr Lohman does note that he is unclear as to why the storage unit is required.
The Rifici submission states that the 'Transport Depot' use as detailed by the proposed development is not a rural pursuit or associated activity as set out within the purpose and intent of the Rural zone. It is submitted that the storage of the detonators is clearly not a rural pursuit or associated activity and is not consistent with the purpose and intent of the Rural zone, that being to allocate land to accommodate rural activities.
On 17 December 2018, Council approved two separate Transport Depots for a water carting business and prime movers (fuel carting) at 125 Walker Road, Serpentine. The Rifici submission is concerned that approval of the proposed development would result in three Transport Depots in close proximity to the Rifici property. It is submitted that three Transport Depots have the potential to cumulatively erode the character and amenity of the Rural zone and surrounding area by way of traffic movements, noise and activities that would not otherwise be expected within the Rural zone. Concern further arises that approval of the third Transport Depot would set an undesirable precedent for development of more Transport Depots in the locality which is inconsistent with the purpose and intent of the Rural zone.

The Rifici submission highlights amenity considerations in the locality regarding which the Tribunal is required to give due regard under cl 67(n) of the Deemed Provisions. The Rifici property is not currently developed for rural-residential purposes, however future ruralresidential is likely. Therefore, it is submitted, consideration should be given to amenity not only to the Rural zone but also ruralresidential in close proximity to the subject site and its use as a Transport Depot for detonators.
The Rifici submission concludes by drawing the Tribunal's attention to the following:
a)the Rifici property was recently granted subdivision approval for 57 rural-residential lots and likely implementation of that approval is a relevant consideration with respect to the likely future amenity of the locality and assessing the impact of the proposed development;
b)the suitability of the proposed development having regard to the purpose and intent of the Rural zone under TPS 2; and
c)the storage of the detonators in a bushfire prone area in proximity to future rural-residential development, notwithstanding the DMIRS license has been granted, the detonators introduce an unnecessary additional risk to human health and safety.

Consideration of the Rifici submission

The majority of the issues raised in the Rifici submission will be considered by the Tribunal in what follows concerning the five issues identified by the parties requiring consideration and determination by the Tribunal.
However, one issue identified by the Rifici submission concerning health and safety issues that may arise at the subject site and in the surrounding area due to the transport and transfer of the detonators. This issue was not directly identified by the parties, however was perhaps indirectly raised by the Shire from some of the submissions and when the Shire provided the Tribunal with a copy of the Dangerous Goods Safety (Explosives) Regulations 2007 (WA) made pursuant to the provisions of the Dangerous Goods Safety Act 2004 (WA).
The Tribunal has been provided with no evidence to substantiate a submission that the proposed development poses a bushfire or health and safety risk to the subject site, or to the locality or during its transport to and from the locality. The Tribunal finds it can rely upon the uncontested evidence provided on these matters by the applicant, in particular Mr Johnson, and finds that this evidence is highly probative, cogent and wholly contrary in this regard to the Rifici submission and the indirect submission by the Shire.

Consideration: issue 1 - whether the proposed development should be classified as Warehouse or Transport Depot

Issue 1 requires the Tribunal to determine whether the correct use classification for the proposed development is Warehouse or Transport Depot under TPS 2. The Tribunal may also need to consider to whether the correct classification of the proposed land use is warehouse/storage or transport depot under draft LPS 3.
If the Tribunal finds that the correct classification of the proposed land use is Warehouse under TPS 2 then it is not permitted in the Rural zone and is not capable of approval, regardless of the provisions of draft LPS3. If the Tribunal takes this view, then the remaining issues do not require determination.
If the Tribunal finds that the correct classification of the proposed land use is Transport Depot under TPS 2, the Tribunal must also give due consideration to the correct classification of the use class under draft LPS 3. If the Tribunal takes the view that the appropriate use class is Transport Depot (and likely also under draft LPS 3) under TPS 2 then, then the proposed development is capable of approval and the remaining issues require determination.
Mr Maiorana was of the view that the proposed development is capable of approval as it should be classified as a Transport Depot under TPS 2 for the following reasons:
a)The primary activity relates to the transfer of goods from one vehicle to another, as part of an overall supply chain for the distribution of the detonators.
b)The storage component is incidental or a contingency use to the Transport Depot use and would only occur in the event of a delivery delay. Storage is not a regular or necessary component of the transfer of the goods on site, rather, it only occurs as a step in the process of distributing these goods if the regular process is disrupted for any reason.
c)He understands the inclusion of the storage unit as part of this application resulted from a DMIRS recommendation to the applicant to increase the security of the supply chain in the event of a delay or disruption to the transfer of the product to the explosives truck.
d)The fact that the storage unit is purpose built does not change the relative weighting that needs to be given to it in determining the correct land use classification. It merely represents the requirements to store the product that is being transported to and from the facility, in the same way that the transfer of livestock would require fit for purpose holding areas.
e)The storage unit is not a substantial piece of infrastructure in any case, in terms of frequency of use, cost of construction or scale relative to other outbuildings on site, and more generally in the Rural zone.
Ms Sandri was of the view that the proposed development did not fit within the land use definition of Transport Depot in TPS 2 or a transport depot in draft LPS 3 and that the land use 'best fits' within the definition of Warehouse in TPS 2. At para 66 of her witness statement, Ms Sandri stated that:
In accordance with the Applicant's written description of the land use it is my opinion that the land use relates to the bringing of goods (detonators) to the subject site for the primary purpose of sorting, storing and distributing from the site. With no commercial vehicles proposed to be stored on site.
It is also noted in paragraph 39 of the Applicant's SIFC that the Applicant would accept a condition permitting storage of goods for up to one (1) week within a month. Therefore, it is my view that storage is anticipated on site. This is further solidified by the DMIRS licence which is for storing of goods on site and not required for the transferring of goods.
It transpired throughout the hearing and, in particular, during the oral evidence of Ms Sandri and Mr Maiorana that the forklift presently situated at the subject site and to be utilised for the proposed development due to its smaller size did not meet the definition of a commercial vehicle under TPS 2 or draft LPS 3. Only the explosives truck and the container truck met the definition. This had an impact on compliance with the definition of Transport Depot in TPS 2 but not draft LPS 3 at it only required two commercial vehicles to be utilised.
For the reasons which follow, the Tribunal finds it is more persuaded by the opinion of Mr Maiorana, rather than Ms Sandri, as to the appropriate use class under TPS 2 (and draft LPS 3) as his views accord more readily with the Tribunal's findings in relation to the evidence of Mr Johnson and the Tribunal's interpretation of TPS 2 and draft LPS 3.
The Tribunal finds that the correct classification of the appropriate use class for the proposed development under TPS 2 is Transport Depot for the following reasons:
a)the subject site (including the storage unit) will be designed or used for the purpose of transfer of goods from one vehicle (the one that brought the container) to another vehicle (the explosives truck). Therefore, the proposed development fulfils the (b) description in the definition of Transport Depot under TPS 2 and it is not necessary for the Tribunal to make any further findings as to whether the proposed development fulfils the (a) or (c) description; and
b)any storage is only incidental to the proposed land use of Transport Depot and therefore, Warehouse is not the appropriate land use classification under TPS 2.
Therefore, the Tribunal finds that the proposed development is capable of approval under TPS 2.
When considering draft LPS 3, the Tribunal finds that the proposed development also would be capable of approval. The Tribunal finds the proposed development more appropriately classified as a transport depot rather than warehouse/storage under draft LPS 3. The Tribunal finds that the premises will be primarily used for the parking or garaging of two or more commercial vehicles including any ancillary maintenance or refuelling, ancillary storage of goods and the transfer of goods from one vehicle to another. The Tribunal agrees with the applicant's submission, when due regard is given to draft LPS 3, that the Shire's arguments in respect to the storage component become redundant given the definition of transport depot in draft LPS 3 expressly contemplates ancillary storage.

Consideration: issue 2 - whether the proposed development is consistent with the objectives and purpose of the Rural zone

Issue 2 requires the Tribunal to consider whether the proposed development is consistent with the objectives and purpose of the 'Rural' zone under TPS 2 or draft LPS 3.
The purpose and intent of the Rural zone as described by cl 5.10.1 of TPS2 is to 'allocate land to accommodate a full range of rural pursuits and associated activities conducted in the Scheme Area'. The applicant agrees with the Shire that the proposed development is not a rural pursuit.
Mr Maiorana was of the view that the proposed development was an associated activity as it did, or could, supply detonators to extractive industries already occurring in the Rural zone. Mr Maiorana was also of the view that the purpose and intent of the Rural zone was to accommodate the full range of rural pursuits and associated activities, however it did not seek to limit any other permissible or discretionary uses to occur. The important point for consideration, according to Mr Maiorana, is that a Transport Depot is permissible in the Rural zone and a thorough assessment of the proposed development shows its smaller scale and intensity in comparison to other approved Transport Depots in the Rural zone. Significantly for Mr Maiorana is that the proposed development would in no way impact the ability of the subject site to continue its primary use for equine activities, or any other rural pursuit contemplated in the future.
Mr Maiorana was of the view that the Shire's recently proposed modifications to the objectives of the Rural zone in draft LPS 3 will not be accepted by the WAPC and the Minister because it is inconsistent with the objectives for the Rural zone in the Model Scheme Provisions. Further, in his view, the Shire's recently proposed modification would also potentially conflict with the permissibility of use classes set out in the Zoning Table of draft LPS 3.
Ms Sandri was of the view that the proposed development was not a rural pursuit nor was it associated with a rural pursuit. Ms Sandri did not address the wording in TPS 2 as to whether the proposed development is associated with an activity conducted in the Scheme Area. The wording of the purpose and intent for the Rural zone does not require that the associated activity also be a rural pursuit. The Tribunal finds that such an interpretation would undermine the permissibility of other uses as set out in the Zoning Table of TPS 2.
Ms Sandri was of the opinion that the storage unit and hardstand areas are consistent with the Rural zone and cl 7.1 of TPS 2 as the storage unit will not be visible from the primary street and is set back sufficiently from surrounding boundaries, with appropriate materiality for the Rural zone.
In relation to draft LPS 3, Ms Sandri referred to the Shire's proposed modification to the last objective for the Rural zone as follows:
To provide for a limited range of non-rural land uses, only where they have demonstrated a direct benefit to the local community and are compatible with surrounding rural uses.
(Tribunal's underlining of recently proposed modification)
Ms Sandri relied upon the Shire's proposed modification to draft LPS 3 to opine that the proposed development could not meet the objectives for the Rural zone in draft LPS 3. Ms Sandri did not provide any reasoning in her witness statement as to why the WAPC and the Minister would accept the Shire's proposed modification. In oral evidence, Ms Sandri stated that the Model Scheme Text can be amended or adjusted to suit a specific local government area and in this instance the Shire had sought to meet its rural objectives by dividing the Rural zone into a number of rural zones such as rural enterprise where certain non-rural activities would be permitted. However, ultimately Ms Sandri stated that she does not have a strong view whether the WAPC and the Minister would approve this proposed amendment to the last objective for the Rural zone.
Ms Sandri stated in conclusion on issue 2 at para 83 of her witness statement that:
In light of this, whilst I can agree that some of the vehicles and machinery proposed to be used for the land use are synonymous to rural pursuits or activities, the storing, sorting and distribution of detonators on the site is not consistent with the objective of the rural zone of TPS2 or draft LPS3.
In crossexamination Ms Sandri was asked as to how the proposed development could adversely affect the rural character of the local area when it was agreed it occupied only 0.2 % of the subject site, was barely if at all visible from outside the subject site. Ms Sandri answered it was the proposed land use which was inconsistent with the rural character. The Tribunal does not agree with Ms Sandri that the proposed development is more aligned with an industrial zone. In circumstances where the Tribunal finds that the proposed development will be barely, if at all, visible from outside the subject site, will have no impact on surrounding rural pursuits and will have little to no adverse impact on the equine activities already occurring on the subject site, the Tribunal cannot accept Ms Sandri's view that the simple fact of the 'land use' means it is inconsistent with the Rural zone.
The purpose and intent of the Rural zone in TPS 2 was considered by the Tribunal in Evangel and Shire of Serpentine-Jarrahdale at [40][43] as follows:
40The purpose and intent of the Rural zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area: cl 5.10.1 of TPS 2. The term 'rural pursuit' is not defined in the Scheme and the applicant does not press that a place of worship is a rural pursuit.
41The respondent argues that the nature of the proposed development could not be considered to be 'rural in any way' and '[s]o to that extent it's inconsistent with the purpose … of the Rural zone (T:171; 06.09.17).
42The Tribunal does not agree. The Zoning Table of the Scheme establishes the permissibility of different categories of rural use classes, as well as, assists in identifying other use classes that may be considered as 'associated activities' that support the carrying out of 'rural pursuits' in the Rural zone. For instance, it may be appropriate to approve a 'Consulting Room', which on its face could not be described as a rural activity, but is a land use that may be needed to service the medical needs of the local community, thereby supporting the carrying out of rural pursuits in the Rural zone. Interestingly, it would seem that the scale of the 'associated activities' within the Rural zone has been considered in the designation of permissibility of use classes in Table 1, as for example, a 'Consulting Room' is a discretionary use, whereas, a 'Medical Centre' is a use not permitted in the Rural zone.
43The Tribunal, therefore, does not consider the use class 'Public Worship Place of' to be inconsistent with the purpose and intent of the Rural zone as provided for in TPS 2 as this use class is considered to be an associated activity that supports the carrying out of rural pursuits in the Rural zone and as such, is consistent with the purpose and intent of the Rural zone. However, as to whether it is appropriate to exercise discretion to approve an application for a place of worship on land zoned Rural will be dependent on the circumstances of the case.
The Tribunal in Evangel and Shire of Serpentine-Jarrahdale found that the proposed development in that instance was consistent with the purpose and intent of the Rural zone as it was an associated activity supporting the carrying out of rural pursuits. The Tribunal finds that the present proceedings can be distinguished from the reasoning in Evangel and Shire of Serpentine-Jarrahdale. The Tribunal finds in the facts and circumstances of these proceedings that the proposed development is an associated activity conducted in the Scheme Area in that a quarry, being an extractive industry, is an 'AA' discretionary use that does occur in the Rural zone. The Tribunal finds, based on the evidence of Mr Johnson that he sometimes supplies detonators to quarries, that the proposed development supports a quarry activity, that being an associated activity that occurs in the Rural zone.
Further, the Tribunal also finds that the proposed development is consistent with the purpose and intent of the Rural zone as it will have no impact on the allocation of land to accommodate the full range of rural pursuits. The Tribunal finds that the proposed development will have little to no impact on the particular rural pursuit, equine activities, already being pursued at the subject site so it is difficult, if not impossible, to conceive how the proposed development will have any possible impact at all on the allocation of land to accommodate the full range of rural pursuits in the Rural zone.
If the Tribunal is incorrect that the proposed development is consistent with the purpose and intent of the Rural zone, a Transport Depot under TPS 2 has been designated as a discretionary use in the Rural zone and, the Tribunal finds, is still capable of approval even if inconsistent with the purpose and intent of the Rural zone. As opposed to the requirement for a 'use not listed' in cl 3.2.5 of TPS 2 in that it may not be permitted if not consistent with the objectives and purpose of the particular zone: cf Direct Homes WA and Shire of SerpentineJarrahdale [2020] WASAT 128. If the proposed development is capable of approval even if it is found it is not a rural pursuit or an associated activity, relevant to the exercise of discretion would be whether the proposed development is inconsistent with the purpose and intent of the Rural zone in TPS 2. The Tribunal finds that the proposed development is not inconsistent with the purpose and intent of the Rural zone in TPS 2.
The Tribunal must also give consideration as to whether the proposed development is consistent with the objectives for the Rural zone in draft LPS 3.
In circumstances where there is a legitimate dispute as to the likelihood of whether the Shire's proposed modification to the last objective for the Rural zone in draft LPS 3 is likely to be accepted by the Minister there is little weight that can be attached to that objective in determining the proposed development. The Tribunal is of the view it cannot make findings regarding the proposed development as against the modified objective and therefore, it cannot weigh for, or against, the exercise of discretion to approve the proposed development.
The Tribunal finds that the proposed development is consistent with the purpose and intent of the Rural zone in TPS 2. The Tribunal also finds that there is nothing in the objectives for the Rural zone in draft LPS 3 that weigh against the exercise of discretion to approve the proposed development.

Consideration: issue 3 - whether the proposed development is consistent with the Rural Strategy

Issue 3 requires the Tribunal to consider whether the proposed development is consistent with the Rural Strategy. The Rural Strategy is a relevant planning consideration under cl 67(zb) of the Deemed Provisions as its sets out the Shire's strategic planning for rural areas.
Mr Maiorana disagreed with the Shire which argued that the proposed development was inconsistent with the Rural Strategy, citing the land use was industrial, and that the use and nature of the product being stored are inconsistent with the prevailing rural character of the Rural Policy Area. Mr Maiorana was of the view that the proposed development would not impact at all on the rural character of the area in any capacity. He noted that there would be no material impacts on the amenity or character of the area in terms of acoustic output, traffic or visual amenity.
Ms Sandri was of the view that the proposed development is inconsistent with the overall purpose of the Rural Strategy as set out in cl 1.1, as it does not 'preserve and enhance the Shire's rural character and its role as an important contributor to the Shire and broader region'. Ms Sandri was of the view, whilst the storage unit and hardstand areas are consistent with the rural character, the storing, sorting and distribution of detonators is a land use more synonymous with an industrial or commercial type land use and is not in keeping with the rural character of the area and does not contribute to the Shire or broader region.
Ms Sandri further opined that the proposed development does not meet the objectives for the Rural Policy Area in cl 4.5 of the Rural Strategy as the land use does not (a) seek to maintain traditional agricultural uses; (b) promote alternative agricultural uses; and (c) is not in keeping with the rural lifestyle or character of the area as it is more aligned with an industrial use. Ms Sandri was of the view that permitting the proposed development could potentially erode the intent of the rural lifestyle and character of the area, and therefore, not satisfy the Rural Strategy.
The Tribunal finds the opinion of Mr Maiorana regarding issue 3 more persuasive than the opinion of Ms Sandri. Ms Sandri failed to logically substantiate her concern that the proposed development would 'potentially' erode the rural lifestyle and character of the area.
The Tribunal finds that the proposed development will not adversely affect the preservation or enhancement of the Shire's rural character nor the objectives of the Rural Policy Area in the Rural Strategy.
Therefore, the Tribunal finds the proposed development is consistent with the Rural Strategy.

Consideration: issue 4 - whether the proposed development is consistent with the draft Strategy

It is common ground that the Shire's draft Strategy constitutes a relevant planning consideration under cl 67(b) of the Deemed Provisions. The draft Strategy has been prepared and advertised alongside draft LPS 3, has had submissions in response to advertising considered, and has been adopted by Council (subject to modifications). The draft Strategy was then sent to the WAPC for final approval on 7 July 2020.
Mr Maiorana considered that the 'rural enterprise' objectives set out in the draft Strategy are not relevant to the assessment of the proposed development as they relate to a new zone being included in draft LPS 3. Given that the proposed development does not propose the introduction of a sensitive land use, or one that requires any change to the existing primary use of the site for equine activities, it is the view of Mr Maiorana that the proposed development is consistent with the relevant objectives in the draft Strategy of protecting agricultural land and rural landscape. Mr Maiorana opined that the proposed development would have no impact on:
a)the rural character or amenity, in terms of noise, traffic or built form;
b)the landscape itself, including environmental features;
c)any aspect of water quality or systems;
d)the ability for other landowners in the locality to undertake tourism operations; and
e)the protection of large rural lots (in fact the proposed development is benefitted by, and relies on, the maintenance of large rural lots).
Consistent with the opinion expressed by Mr Maiorana in relation to similar objectives in draft LPS 3, he is of the view it is sufficient for the proposed development to bring about no change (or maintain) the rural character of the area in order for it to be consistent with the objectives of the draft Strategy.
Ms Sandri opined that the draft Strategy is clear regarding the intent of the Rural zone insofar as the draft Strategy has resulted in several different rural zonings within draft LPS 3. Ms Sandri reasoned that the draft Strategy and draft LPS 3 acknowledge the potential for non-rural land uses within the Rural zone (see for instance cl 3.3 of the draft Strategy) by seeking to consolidate them within a rural enterprise zone with the intent to maintain the integrity of the general rural zone. Ms Sandri was of the view that the land use by the proposed development is an inappropriate land use in the Rural zone. In Ms Sandri's opinion the land use, (in her view being storing, sorting and distribution of detonators) does not satisfy the intent of the draft Strategy in that it does not align with a rural activity which will contribute to the Rural zone of the locality.
The Tribunal finds that it cannot accept Ms Sandri's opinion on this issue as it does not accord with the Tribunal's findings regarding the land use. The Tribunal has found that the appropriate land use classification of the proposed development in TPS 2 is Transport Depot (and draft LPS 3). The Tribunal has found that storage is not an integral component of the proposed development, in fact it is only incidental to the land use. The Tribunal finds that the proposed development will have little to no effect on the equine activities already occurring at the subject site. The Tribunal further finds the proposed development will have no adverse impact on the character and amenity of the local area and will, therefore, maintain the integrity of the Rural zone. It follows, with regard to Issue 4 that the Tribunal prefers and relies upon the opinion of Mr Maiorana.

Consideration: issue 5 - whether the proposed development is consistent with SPP 2.5

SPP 2.5 applies to land zoned for rural purposes under a region or local planning scheme (cl. 3.1(a)) and to development proposals on rural zoned land (cl. 3.3(c)).
Ms Sandri was of the view that the proposed development (with her view being the primary nature being to store, sort and distribute detonators unrelated to a rural or agricultural land use) does not support existing, expanded, or future primary production of agricultural land in the locality and is therefore inconsistent with policy objectives (a) and (b) in cl 2 of SPP 2.5. Ms Sandri held the view that there is a conflict between the existing uses in the area and the proposed development by virtue of the function of the land use. Ms Sandri further stated that the proposed development is not compatible with the existing uses in the locality.
Mr Maiorana was of the view that the proposed development is consistent with the relevant policy objectives of SPP 2.5 in that the proposed development:
a)supports the landowners continued use of the subject site for equestrian activities by providing an alternative income stream (cl 4(a));
b)does not impact on the investment security for existing or future expanded land uses adjacent the site (cl 4(b));
c)supports the extraction of basic raw materials both in and outside of Perth and Peel planning regions, including hard rock or stone (cl 4(c));
d)does not create a land use conflict with any existing (or future) uses of the land, as it is not an incompatible land use and, any impacts are capable of being accommodated on site with adequate separation to adjoining sensitive land uses (cl 4(e));
e)does not prejudice and is adequately separated from the identified urban land on the south-east of the subject site (cl 4(f)); and
f)does not impact the environmental or landscape features of the locality (cl 4(g)).
Consistent with the Tribunal's reasoning elsewhere, the Tribunal agrees with and prefers the opinion of Mr Maiorana concerning SPP 2.5.
As noted above, the Tribunal does not share the view with Ms Sandri that the primary use in the proposed development is to store detonators. The Tribunal finds storage to be an ancillary, or contingency, use. This finding by the Tribunal undermines the foundation of Ms Sandri's conclusions regarding the proposed development such that Ms Sandri's opinion cannot be accepted.
The Tribunal finds that the proposed development is consistent with, and will not compromise, the policy objectives of SPP 2.5. In particular, the Tribunal finds that the proposed development will not adversely affect the support of existing, expanded and future primary production and will not presently, or in the future, adversely affect the protection of rural land.

Conclusion

In accordance with these reasons, the Tribunal concludes that the proposed development is consistent with the existing and emerging planning framework. In relation to the issues identified, the Tribunal concludes and finds as follows:
1)the correct classification of the proposed land use is 'Transport Depot' under the definitions in both TPS 2 and draft LPS 3;
2)the proposed development is consistent with the purpose and intent of the 'Rural' zone under TPS 2 and the objectives under draft LPS 3;
3)the proposed development is consistent with the Rural Strategy;
4)the proposed development is consistent with the draft LPS; and
5)the proposed development is consistent with SPP 2.5.
In the exercise of the Tribunal's discretion to make the correct and preferable decision upon review and in weighing up the Tribunal's findings concerning each of the issues, the Tribunal concludes that the respondent's decision should be set aside and approval granted to the proposed development subject to suitable conditions.

Conditions

Should the Tribunal determine that the proposed development should be approved, the Shire proposed six conditions of approval as follows:
(1)The transfer of goods shall be undertaken on the hardstand area as displayed on the approved plans only.
(2)This approval relates to the transfer of goods (class 1.4S detonators) only, no other type of explosive or any other goods are permitted to be transferred at the premises for the purposes of this approval.
(3)A maximum of one (1) occasion of the transfer of goods is permitted to take place per month for the purpose of this approval, unless otherwise approved by the Shire.
(4)A maximum of three (3) commercial vehicles are permitted to be parked on the land for the purpose of this approval.
(5)The storage of goods on site is not permitted, except where those goods are loaded on a commercial vehicle designed for the transportation of such goods.
(6)Prior to commencement of works, a Landscaping Plan shall be submitted to and approved by the Shire of Serpentine Jarrahdale. The Landscaping Plan shall detail the replacement of any trees required to be removed in order to maintain the asset protection zone. Once approved, the Landscaping Plan shall be implemented and maintained in its entirety.
The applicant had no objection to proposed conditions 1, 2 and 4 and opposed conditions 3, 5 and 6. The applicant proposed amended conditions 3 and 5 as follows:
(3)A maximum of 12 days for the transfer of goods is permitted to take place per year for the purpose of this approval, unless otherwise approved by the Shire of Serpentine Jarrahdale.
(5)Any ancillary storage of goods brought to the premises is limited to a period of one (1) week per consignment.
The applicant objected to proposed condition 6 on the basis that there is no indication in the bushfire management plan (BMP) prepared that any vegetation is required to be removed and therefore no revegetation is part of the proposed development. The applicant submits that the BMP indicates that vegetation needs only to be managed to a low threat standard. Accordingly, the applicant submits, the requirement for a landscaping plan in proposed condition 6 is onerous and this proposed condition should not be imposed. The Tribunal concurs with that submission.
The Tribunal finds that the proposed wording for conditions 3 and 5 by the applicant is appropriate in all of the circumstances. The Tribunal has also made some further minor changes to the wording and grammar of conditions 1 and 2.

Orders

In accordance with these reasons, the Tribunal determines that the appropriate orders to be made under s 29(3) of the State Administrative Tribunal Act 2004 (WA) are as follows:
1.The decision of the respondent on 26 March 2020 (as affirmed upon reconsideration on 15 June 2020) to refuse to approve the application for a Transport Depot situated on Lot 597 Walker Road and adjoining Lots 598 and 599 Karnup Road, Serpentine is set aside and approval is granted subject to the following five conditions:
(1)The transfer of goods shall only be undertaken on the hardstand area as indicated on the approved plans.
(2)This approval only relates to the transfer of goods (class 1.4S detonators), no other type of explosive or any other goods are permitted to be transferred at the premises for the purposes of this approval.
(3)This approval permits a maximum of 12 days per year where the transfer of goods can take place, unless otherwise approved by the Shire of SerpentineJarrahdale.
(4)A maximum of three (3) commercial vehicles are permitted to be parked on the land for the purpose of this approval.
(5)Any ancillary storage of goods brought to the premises is limited to a period of one (1) week per consignment of goods.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
11 DECEMBER 2020

BLAST-TECH AUSTRALIA and SHIRE OF SERPENTINE­JARRAHDALE

[2020] WASAT 157

11 DECEMBER 2020