BRAJKOVICH DEMOLITION PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2011] WASAT 194

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BRAJKOVICH DEMOLITION PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 194

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 11 NOVEMBER 2011

DELIVERED : EDITED REASONS DELIVERED ORALLY ON 11 NOVEMBER 2011

FILE NO/S: DR 330 of 2010
DR 61 of 2011
DR 100 of 2011

BETWEEN: BRAJKOVICH DEMOLITION PTY LTD (DR 330 of 2010 and DR 61 of 2011)
BRAJKOVICH DEMOLITION & SALVAGE PTY LTD (DR 100 of 2011)
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Direction to cease crushing building materials and to remove stockpile Development application for stockpiling and crushing building materials and green waste stockpiling and processing at a different property Practice and procedure Liberty to apply Consent orders granting development approval subject to conditions agreed through mediation Whether Tribunal should grant liberty to apply, generally, or alternatively, in relation to specific conditions Whether conditions of development approval are so novel that liberty to apply should be granted Obligation of Tribunal to act speedily and minimise costs to parties Conditions are not unusual planning conditions Application for liberty to apply dismissed Whether submission made by residents warrants refusal of proposed development Consent orders made

Legislation:

Hope Valley Wattleup Redevelopment Act 2000 (WA), s 25, s 26, s 28, s 28(1), s 28(3), s 29, s 31
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004 (WA), s 5, s 9, s 72, s 73

Result:

Consent orders made
Application for liberty to apply dismissed

Category: B

Representation:

Counsel:

Applicant: Mr MC Hotchkin
Respondent: Ms CA Ide

Solicitors:

Applicant: Hotchkin Hanly
Respondent: State Solicitor's Office

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

Stein and Shire of Chapman Valley [2009] WASAT 113

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Three matters were before the Tribunal between Brajkovich Demolition Pty Ltd (and related company Brajkovich Demolition & Salvage Pty Ltd) and the Western Australian Planning Commission, relating to a direction to cease the use of a site at Rockingham Road, Henderson (site 1) for crushing of building waste material and to remove the stockpile of material (DR 330 of 2010), refusal of a development application to approve the retention of the stockpile at site 1 (DR 61 of 2011), and refusal of a separate development application for approval to crush building waste and to process green waste at a second, nearby site, also on Rockingham Road (site 2) (DR 100 of 2011).
After a lengthy process of mediation within the Tribunal, the parties reached agreement to confirm but vary the direction the subject of DR 330 of 2010, and to withdraw the application for review of development refusal the subject of DR 61 of 2011.
In DR 100 of 2011, the parties reached an agreement that the development application should be approved, subject to detailed and extensive conditions of development approval, but disagreed in relation to one matter. Brajkovich Demolition & Salvage Pty Ltd made an application, opposed by the Western Australian Planning Commission, for liberty to apply to the Tribunal to be granted in relation to all, or, alternatively, four of the conditions, for the entire five year length of the approval. It was submitted on behalf of the company that, due to the novelty of some of the conditions that were agreed to in mediation, and the potential practical difficulties in their application, it would be efficient and cost-effective to be able to return to the Tribunal to resolve any difficulties that may arise.
After consideration of the application, the Tribunal gave an oral decision in which it made the proposed consent orders in the two matters relating to site 1. The crushing activity on site 1 has ceased and will not recommence and the stockpile will be removed within about 14 months in accordance with conditions that will ensure that the removal occurs in an appropriate manner. The Tribunal also noted that the residents' submission related principally to the crushing activity, rather than the stockpile.
The Tribunal then determined that liberty to apply, either generally or limited to specific conditions, should not be granted in DR 100 of 2011. The Tribunal expressed significant doubt as to whether it has power to alter conditions of development approval once imposed. However, the Tribunal did not come to a final decision as to whether it has power as, assuming it had power, it considered that it should decline to grant liberty in the exercise of discretion. Granting liberty to apply would be contrary to the principle of finality of litigation and the Tribunal's objectives to resolve matters speedily and at minimal cost to parties. Further, the specific conditions in relation to which liberty to apply was sought were not found to be not so novel or unusual in the context of conditions of planning approval that the discretion should be exercised.
The Tribunal found that the submission of the residents did not warrant refusal of the development application on site 2 and that the detailed and extensive conditions of approval are likely to ensure that the development will operate in an acceptable manner in terms of both environmental and amenity outcomes. The Tribunal therefore granted development approval in DR 100 of 2011, subject to 24 conditions agreed in mediation, but without liberty to apply to the Tribunal in the future.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

There are three proceedings before the Tribunal involving Brajkovich Demolition Pty Ltd and Brajkovich Demolition & Salvage Pty Ltd (Brajkovich) and the Western Australian Planning Commission (Commission).
DR 330 of 2010 involves an application for review commenced on 12 October 2010 in relation to a direction given to Brajkovich by the Commission requiring it to cease the use of premises at Lot 4 (No 13) Musson Road and Lot 20 Rockingham Road, Henderson (site 1) for the crushing of building waste material, and to restore the land. The direction was given pursuant to s 31 of the Hope Valley Wattleup Redevelopment Act 2000 (WA) (Redevelopment Act). The direction to remove the material was stayed. However, Brajkovich has not carried out crushing activities on that site consistently with the direction since it was issued.
DR 61 of 2011, which was commenced on 1 March 2011, involves an application for review of the refusal of a development application lodged by Brajkovich with the Commission for approval to retain the stockpile of building material on site 1.
DR 100 of 2011, which was commenced on 28 March 2011, is an application for review of the refusal by the Commission of a further development application which is to enable Brajkovich to carry out stockpiling and crushing of demolition waste and green waste stockpiling and processing at a second site (which is in the general vicinity of the first site), being Lot 1 Rockingham Road, Henderson (site 2).
The three proceedings were the subject of extensive mediation in the Tribunal.

Consideration of proposed consent orders

This afternoon, the parties have presented the Tribunal with two signed minutes of consent orders, those being in DR 330 of 2010 and DR 61 of 2011, and an unsigned minute of proposed orders in DR 100 of 2011.

DR 330 of 2010 and DR 61 of 2011

The agreement between the parties in relation to DR 330 of 2010 is that the direction in relation to the first site should be confirmed but varied to enable the existing building rubble, green waste and plant and equipment stored on the land, or intended to be stored thereon, to be removed by 11 February 2013.
The proposed consent orders do not vary the operative requirement to cease crushing activities on the site. The consent orders also include detailed environmental monitoring and requirements to facilitate the satisfactory removal of the building rubble and green waste.
In DR 61 of 2011, the parties agree that the application for review of the refusal of development approval to enable the building rubble to remain on site 1 is to be withdrawn and each party is to pay its own costs.
The Tribunal notes that there has been some considerable community concern in relation to the former operation of the crushing plant on site 1. At the first directions hearing in DR 330 of 2010 which the Tribunal conducted in late 2010, a number of residents attended and expressed concerns, although the crushing activity itself had ceased by that stage. Subsequently, on 12 April 2011, the Tribunal received a three‑page written submission from a number of local residents.
On 4 May 2011, the Tribunal granted leave to these residents, pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act), to make a written submission in relation to the application in the form of their correspondence to the Tribunal on 12 April 2011. That order granting leave was made in each of the three proceedings.
The Tribunal is satisfied that it is appropriate to grant the consent orders in the minutes of consent orders signed by the parties in DR 330 of 2010 and DR 61 of 2011.
The concerns expressed by the residents in their submission appear primarily to have been directed to the crushing activity which was unregulated, it appears at least as a matter of planning law for some six years prior to the matter coming before the Tribunal. The crushing activity ceased upon the giving of the direction to Brajkovich. While the consent orders in DR 330 of 2010 contemplate the retention of the stockpile on that land for another 14 months or so, it does not appear that the stockpile itself is the source of significant community complaint.
Furthermore, the agreed method of removal and in particular the requirement to maintain a dust management plan and implement it should ensure that the removal is carried out in an appropriate manner. The conditions subject to which the stockpile is to be removed also include an asbestos management plan which is required to be prepared to the satisfaction of the Commission on advice from the Department of Environment and Conservation, the City of Cockburn and the Department of Health.
In consequence, the Tribunal makes the orders set out in the minutes of consent orders dated 4 November 2011 in each of DR 330 of 2010 and DR 61 of 2011 and the Tribunal congratulates the parties for having resolved those matters in an appropriate and acceptable manner.

DR 100 of 2011

In DR 100 of 2011, the parties have presented a minute of proposed orders which is unsigned. The minute comprises an order that the application for approval to stockpile and crush construction and demolition waste and green waste stockpiling and processing on site 2 made on 3 February 2011 is approved in accordance with the conditions attached and marked 'A', which comprise a set of 24 conditions. The conditions themselves appear to have resulted from the protracted mediation process referred to earlier. The conditions are very detailed and contain extensive environmental controls on the proposed development.
The approval contemplated by the minute of proposed orders is limited to five years from the date of the approval. It also includes the requirements for, among other things, a rehabilitation and final contour plan to be prepared and implemented to the satisfaction of the Commission, on advice from other relevant authorities, and requires that the materials and infrastructure associated with the approved use and development be removed at the end of the approval 'without unduly impacting on the amenity of the locality or causing any health risk to the public'.
There is a requirement for an asbestos management plan to be prepared to the satisfaction of the Commission and, on advice from relevant authorities, monitored and implemented. There are other detailed conditions ensuring that imported material is free from visible asbestos and requiring monitoring for asbestos on the site. The conditions also include a detailed dust management regime, including monitoring and automatic activation of systems.
In the Tribunal's view, the submission made by the residents under s 242 of the PD Act does not warrant refusal of the proposed development the subject of DR 100 of 2011. As noted earlier, the principal concerns of the residents related to crushing operations on a different site which was, from a planning perspective, unregulated for a period of six years. That is a far cry from the development as it would operate in accordance with the conditions attached to the minute of proposed orders. The Tribunal is satisfied that the detailed and extensive conditions attached to the minute of proposed orders would ensure that the development operates in an acceptable manner.

Brajkovich's application for liberty to apply

The parties do not disagree in relation to the conditions. Indeed, the conditions attached to the minute of proposed orders resulted from the mediation and have been agreed between the parties, subject to one matter. The outstanding matter involves an application by Brajkovich for there to be liberty to apply to the Tribunal in relation to all of the conditions for the entire length of the approval or, alternatively, liberty to apply in relation to four of the conditions which most concern Brajkovich, namely, conditions 3, 6, 7 and 8.
The application for the granting of liberty to apply on either basis is opposed by the Commission. Mr MC Hotchkin, appearing for Brajkovich, submitted that there is power in the Tribunal under s 72 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to make orders subject to conditions and also to make ancillary orders to enable the Tribunal to, in effect, determine disputes as to the interpretation and application of conditions, and to vary conditions imposed on a planning approval.
Mr Hotchkin also submitted that it is appropriate, in the circumstances of this case, to grant liberty to apply for essentially three reasons.
First, Mr Hotchkin submitted that the conditions that have been agreed by the parties, subject to the issue of liberty to apply, are not only extensive and onerous, but, in some respects, quite novel. Because of their novelty, Mr Hotchkin submitted that it is appropriate to grant liberty to apply.
Mr Hotchkin gave the example of condition 8, which requires that material on the site shall contain no more than 0.001% weight for weight asbestos. Mr Hotchkin contended that this criterion is 10 times more stringent than the highest standard prescribed by the Department of Health's Guidelines for the Assessment, Remediation and Management of AsbestosContaminated Sites in Western Australia (May 2009) for residential uses.
Mr Hotchkin said that, while Brajkovich 'honestly believes that it ought to be able to meet the standard and the [Commission] believes that it is a reasonable and practical requirement to safeguard the neighbouring residents, experience may demonstrate later that the standard cannot be met or is difficult to measure accurately because of the constant movement of material on and off site'. He therefore expressed a potential concern about the workability of this and other conditions.
Secondly, Mr Hotchkin referred to a line of decisions in the Town Planning Appeal Tribunal where liberty to apply was granted, and referred to one decision of this Tribunal, namely, Stein and Shire of Chapman Valley [2009] WASAT 113 (Stein), in which, having granted development approval for a dog kennel, the Tribunal granted liberty to apply for 21 days.
Finally, Mr Hotchkin referred to the objectives of the Tribunal set out in s 9 of the SAT Act, which include to act as speedily and with as little formality and technicality as is practicable, and to minimise the costs to parties. Mr Hotchkin submitted that, without liberty to apply, in effect, this objective of the Tribunal will be undermined or, at least, adversely affected.
Mr Hotchkin submitted that, without liberty to apply, the only way in which Brajkovich could, in effect, return the matter to the Tribunal to resolve a dispute as to whether a condition could be complied with is by lodging a fresh development application, waiting 60 days, and seeking review of the deemed refusal of the application. Otherwise, if it were found that a condition as imposed is unreasonable, unworkable or prejudicial to Brajkovich in terms of an exorbitant cost of consultancy fees, the matter could not be remedied. Mr Hotchkin noted that certainty is very important to Brajkovich. What is needed, Mr Hotchkin submitted, 'is a quick and straightforward mechanism for the parties to approach the Tribunal to make orders in the current proceedings if required'.

Consideration of application for liberty to apply

In my view, liberty to apply, both generally and in the alternative, limited manner sought, should be refused. There is power under s 73 of the SAT Act for the Tribunal to make an order subject to conditions and to make ancillary orders that the Tribunal considers appropriate for achieving the purpose for which it may exercise a primary power. However, I have significant doubts as to whether the Tribunal could entertain, by the making of an order granting liberty to apply, an amendment to a condition imposed on a planning approval in the manner contemplated by the liberty sought in this case.
DR 100 of 2011 is an application for review commenced under s 29 of the Redevelopment Act. Its genesis is the requirement to obtain development approval under s 25 of the Redevelopment Act. That section provides, in subsection (1), that 'a person must not undertake any development or cause any development to be undertaken on land that is in, or partly in, the redevelopment area without the approval of the Commission'.
Section 26 of the Redevelopment Act facilitates the making of an application for development approval. Section 28(1) of the Redevelopment Act provides 'that the Commission may grant or refuse to grant approval of the proposed development', having regard to several matters, including, at paragraph (f), 'the requirements of orderly and proper planning'. Section 28(3) of the Redevelopment Act specifically enables the Commission to limit the time for which an approval remains in force.
Section 5 of the SAT Act states that, if there is any inconsistency between the SAT Act and an enabling Act, the enabling Act prevails. In this case, the Tribunal, on review, is exercising a statutory discretion and in particular a statutory planning discretion under s 28 of the Redevelopment Act standing, as is often said, in the shoes of the original decisionmaker. The power to impose conditions on the grant of development approval in this case derives not from the SAT Act, but from an incident of the planning discretion under s 28 of the Redevelopment Act. It is clear that the Commission could not, after granting an operative development approval under the Redevelopment Act, amend a condition imposed on the grant of an approval. It would seem, therefore, that the Tribunal is similarly constrained.
However, it is unnecessary in the circumstances of this case to reach a considered or decided view in relation to whether the Tribunal has power under s 73 of the SAT Act to grant liberty to enable conditions of development approval to be interpreted, varied or amended. Assuming that the Tribunal did have this power, in my view, it would be inappropriate to exercise the discretion under s 73 of the SAT Act, if available, to grant liberty.
In relation to the application to grant liberty generally, in my view, the discretion, if available, should be exercised against granting that liberty for five reasons.

First, there is a significant public interest in the finality of litigation which includes litigation involving administrative review. In effect, Brajkovich is asking for this litigation, which has already been in the Tribunal since March 2011, to remain in the Tribunal until November 2016.
Secondly, as Ms CA Ide, who appeared on behalf of the Commission, submitted, from the Commission's perspective, the conditions which Brajkovich may seek ultimately to have varied or amended if liberty were granted are essential to the proper operation of the development. The Commission would not agree to consent orders in the absence of any of the conditions that are attached to the minute of proposed orders. It would not consent to the variation of any of those conditions. Given that the application for liberty is made in the context of a proceeding in which the Commission is willing to enter into consent orders, the Commission's position is, in my view, a further factor against the granting of liberty.
Thirdly, in my view, the granting of liberty would be contrary to the very objectives that Mr Hotchkin has drawn on in aid of the application. The Tribunal understands that, from Brajkovich's individual perspective, it would be quicker and perhaps cheaper to be able to bring the matter back to the Tribunal simply by the exercise of liberty to apply, rather than have to proceed by way of a fresh development application. However, in terms of the resolution of the proceeding itself, it would be manifestly inconsistent with the Tribunal's obligation to act speedily and, equally, the obligation to minimise the costs to parties. The parties include, of course, the Commission, which has now been the respondent to this proceeding since March this year.
Fourthly, I am not persuaded that the apparent practice of the Town Planning Appeal Tribunal of granting liberty wherever difficulties might be anticipated in the application of conditions should be followed. There is no detailed analysis of the approach or the reasons for it in the decisions of the former Tribunal. In the decision of this Tribunal in Stein, there was a very limited order, an order limited to 21 days. That is fundamentally different from either the general liberty or the liberty in relation to four conditions which would operate for five years.
Finally, as I have noted, Brajkovich has a right to apply again for planning approval under the Redevelopment Act if its concerns that a condition imposed becomes unworkable eventuates. The Redevelopment Act confers a right of review, and that matter could be brought before the Tribunal on review.
In relation to the alternative argument of Brajkovich that there should be liberty to apply for the life of the development approval in relation to four specific conditions, in my view, the reasons for declining the general liberty application that I have already outlined substantially apply to the more limited application as well. Furthermore, viewing the conditions that have given rise to Brajkovich's principal concerns, the conditions do not involve such novelty that liberty should be granted if there were a discretion to do so.
Condition 3, which relates to the rehabilitation and final contour plan, is of particular concern to Brajkovich in its requirement that the materials and infrastructure are to be removed at the expiry of the development approval 'without unduly impacting on the amenity of the locality or causing any health risk to the public'. That formulation is not in any way unusual in a planning approval and moreover seems eminently reasonable when one is considering the rehabilitation of a site used for the crushing of waste.
Condition 6, which relates to an asbestos management plan being prepared and implemented, concerns Brajkovich because it requires an independent occupational hygienist approved by the Department of Health, and at the cost of the applicant, to undertake monthly auditing in relation to that plan and its implementation. The concern expressed by Mr Hotchkin on behalf of Brajkovich is that occupational hygienists approved by the Department of Health who are independent are very limited in number and may impose an unreasonable charge on Brajkovich to undertake the monitoring.
It is not said that there are no experts who qualify, but that they might ultimately charge an unreasonable amount. In my view, this concern would not warrant a granting of liberty to apply if available, as this is a matter that should be addressed in the consent order, or at least in the condition. It is also not unusual for conditions of approval in relation to certain uses at least to require ongoing monitoring by certain specialist experts.
Condition 7 relates to a requirement that there be certification by persons with adequate qualifications, training and experience in the identification of asbestos in terms of the materials imported onto the site. Again, it is not said that there are no such persons and the imposition of conditions requiring certification in such circumstances is not unusual.
Finally, condition 8 requires that material on the site shall not contain more than 0.001% weight for weight asbestos. Mr Hotchkin expressed a concern about the methodology or means by which this criterion is to be assessed. Ms Ide submitted that the condition was recommended by the consulted authorities and reflects a standard recognised by them. It does not seem that the standard referred to in condition 8 is incapable of application. In relation to whether it is reasonable, that should be determined at the stage of approval of a proposal. In this case, the parties now consider that the condition is appropriate. The Tribunal is not called upon presently to reach a view as to whether, if there were a contest with evidence called in relation to the condition, it would impose it in these terms. In the circumstances, in my view, if there were discretion to grant liberty to apply, it should not be exercised in order to grant liberty to apply.

Conclusion

[Mr Hotchkin applied for consent orders to be made in DR 100 of 2011 in terms of the unsigned minute of proposed orders and Ms Ide consented.]
The Tribunal earlier noted and referred to the submissions made by the third parties as not, in its view, warranting a refusal of the application. The Tribunal congratulates the parties for having undertaken very detailed discussions through mediation and having formulated an agreed outcome. The Tribunal is satisfied that it is appropriate to grant the approval, subject to the detailed and extensive conditions, which are likely to ensure that the development operates in an acceptable manner in terms of both environmental and amenity outcomes.

Orders

For those reasons, the Tribunal makes the following orders contained in the minute of proposed orders in each of the matters: firstly, DR 330 of 2010; secondly, DR 61 of 2011; and thirdly, DR 100 of 2011.

DR 330 of 2010

1.The direction notice dated 29 November 2010 issued by the respondent pursuant to section 31 of the Hope Valley Wattleup Redevelopment Act 2000 is varied as follows:
(a)deleting the following paragraph:
'YOU ARE FURTHER DIRECTED BY THE WESTERN AUSTRALIAN PLANNING COMMISSION TO REMOVE THE BUILDING RUBBLE, AND PLANT AND EQUIPMENT STORED ON THE LAND OR INTENDED TO BE STORED THEREON FROM THE LAND WITHIN 28 DAYS FROM THE DATE OF THIS NOTICE.'
and

(b)insertion of the following paragraphs:
'YOU ARE FURTHER DIRECTED BY THE WESTERN AUSTRALIAN PLANNING COMMISSION TO REMOVE THE BUILDING RUBBLE, GREEN WASTE AND PLANT AND EQUIPMENT STORED ON THE LAND OR INTENDED TO BE STORED THEREON FROM THE LAND BY 11 FEBRUARY 2013.'
'With respect to the manner of removal of plant, equipment, building rubble and green waste, removal is to be undertaken in accordance with a Dust Management Plan which shall be prepared to the satisfaction of the Western Australian Planning Commission on advice from the Department of Environment and Conservation and City of Cockburn and shall, inter alia, stipulate that removal:
(i)can only occur when:
(a)the material is sufficiently wet to prevent visible dust lift off crossing the external lot boundaries; and
(b)the winds are from the west, west north west, west south west, south west, south south west and south unless winds are no greater than 11 knots;

(ii)is ceased when winds are greater than 25 knots;
(iii)will take place only once a wind sock to the specifications of the City of Cockburn is installed in a location visible from Musson Road for the duration of the removal of plant, equipment, building rubble and green waste required by the direction notice; and
(iv)save for dust suppression, shall only be undertaken between 7 am and 6 pm on Monday to Saturday only and shall not be undertaken at all on public holidays.

With respect to the manner of removal of building rubble, removal is to be undertaken in accordance with an Asbestos Management Plan which shall be prepared to the satisfaction of the Western Australian Planning Commission on advice from the Department of Environment and Conservation, City of Cockburn and Department of Health.'

2.There be no order as to costs.

DR 61 of 2011

1.Pursuant to section 46 of the State Administrative Tribunal Act 2004 (WA), the applicant has leave to withdraw the proceedings, and the proceedings are hereby withdrawn.
2.There be no order as to costs.

DR 100 of 2011

1.'Brajkovich Demolition & Salvage Pty Ltd' is substituted as the applicant in this matter.
2.The application for approval to stockpile and crush construction and demolition waste and green waste stockpiling and processing on Lot 1 Rockingham Road, Henderson made on 3 February 2011 is approved in accordance with the conditions attached and marked 'A'.
3.There be no order as to costs.

Attachment 'A'

Conditions

1.This approval is to stockpile and crush solid waste materials from the demolition of buildings, roads and car parks and to stockpile and process green wastes (trees and plants) on Lot 1 Rockingham Road (subject land). Other materials including building contents, white goods, furniture, or motor vehicles shall not be stockpiled or processed on the subject land. All stockpiling, crushing and processing (Operations) is to be undertaken in accordance with Development Site Plan (Revision B) dated 15 June 2011 and Contour Plan dated 9 June 2011 (E Ref 061102B) (copies which are attached and marked 'B').
2.The use and development referred to in condition 1 is approved for a period of five years only from the date of this approval.
3.A Rehabilitation and Final Contour Plan shall be prepared and implemented to the satisfaction of the Western Australian Planning Commission (WAPC) on advice from the Department of Environment and Conservation (DEC), Department of Health (DOH), City of Cockburn and LandCorp prior to the expiry of this planning approval unless a new approval is obtained prior to the expiry of this approval. The Rehabilitation and Final Contour Plan, inter alia, is to detail the manner in which all materials and infrastructure associated with the approved use and development will be removed without unduly impacting on the amenity of the locality or causing any health risk to the public.
4.The total quantity of materials received or processed on the subject land shall not exceed 100,000 tonnes for each year of approval commencing on the date of approval. The volume of material entering and leaving the subject land shall be recorded weekly and this data retained and made available for inspection by the DEC, DOH, and City of Cockburn. A feature survey shall be done on the subject land every six months and the survey shall be retained and made available for inspection by the DEC, DOH and City of Cockburn.
5.All activities on the subject land, with the exception of dust suppression, shall only occur between 7 am and 6 pm Monday to Saturday and not at all on public holidays.
6.An Asbestos Management Plan being prepared to the satisfaction of the WAPC on advice from the DEC, DOH and City of Cockburn prior to the commencement of Operations. The Asbestos Management Plan shall incorporate monthly auditing (including a visual inspection (which is videotaped) and sampling) by an independent (and not associated with the applicant or its environmental consultant) occupational hygienist approved by the DOH at the cost of the applicant. The Plan, inter alia, will require the following:
(a)monthly audits for the first six months of Operations, during which the occupational hygienist will undertake a visual inspection (which will be videotaped) and sampling of the material at the premises in accordance with the Guidelines for the Assessment, Remediation and Management of AsbestosContaminated Sites in Western Australia (May 2009) and provide a report to the WAPC, the DEC, DOH and the City of Cockburn within three weeks of completion of the audit and receipt of laboratory analysis results of the sampling done on the materials;
(b)audits every two months and sampling of the materials and reporting by the occupational hygienist in the manner set out in subparagraph (a) above for the next 6 months; and
(c)quarterly audits, sampling of the material and reporting by the occupational hygienist in the manner set out in subparagraph (a) above for the remaining duration of the Operations.

7.Each truckload associated with the development (excepting 100% green waste) which enters the subject land shall be accompanied by a certificate certified by a person with adequate qualifications, training and experience in identification of asbestoscontaining materials and appointed in writing as such by Brajkovich Demolition & Salvage Pty Ltd that the materials have been inspected and that no visible asbestos is contained within the truckload. All certificates are to be retained and made available for inspection by DEC, DOH, City of Cockburn and the occupational hygienist (referred to in condition 6).
8.Material on the subject land shall contain no more than 0.001% weight for weight asbestos.
9.Field and laboratory sampling of every 70m3 throughput of material (not including green waste) on site less than 10mm in diameter is to occur and be conducted in accordance with the Guidelines for the Assessment, Remediation and Management of AsbestosContaminated Sites in Western Australia (May 2009). The volume of throughput shall be recorded weekly and this data be retained and made available for inspection by the DEC, DOH, City of Cockburn and the occupational hygienist. The sampling for laboratory analysis needs to be sent to a NATA accredited laboratory. All sampling results are to be retained and made available for inspection by DEC, DOH, City of Cockburn and the occupational hygienist (referred to in condition 6).
10.From the start of Operations and the subsequent summer period after commencement of Operations, a campaign of three months monitoring each for asbestos by the membrane filter method (for 0.01 asbestos fibres per ml of air) is to be undertaken. The plan for the campaign is to be prepared by the occupational hygienist and approved by DOH. The campaign is to be audited monthly by the occupational hygienist.
11.The Asbestos Management Plan shall be implemented to the satisfaction of the WAPC on advice from the DEC, DOH and City of Cockburn.
12.A Dust Management Plan being prepared (prior to Operations commencing) and implemented for the subject land and haul roads to the satisfaction of the WAPC on advice from the DEC, DOH and City of Cockburn. The Dust Management Plan shall, inter alia, require that all activities cease (apart from those activities associated with dust suppression) in the event of water supply failure.
13.A Sprinkler Reticulation Plan being prepared prior to operations commencing to the satisfaction of the WAPC on advice from the DEC, DOH and City of Cockburn incorporating, inter alia, water pressure and availability calculations to define the maximum nonhydromulched areas that are capable of being adequately watered to address dust lift off during hot, dry and windy periods.
14.The Sprinkler Reticulation Plan being implemented to the satisfaction of the WAPC on advice from the DEC, DOH and City of Cockburn.
15.The total nonhydromulched area shall not at anytime exceed the maximum area capable of being adequately watered to address dust lift off during hot, dry and windy periods referred to in the Sprinkler Reticulation Plan.
16.24 hour seven day a week dust monitoring for PM10 shall be undertaken at the locations specified by the WAPC on advice from the City of Cockburn, DEC and DOH. The dust monitoring shall commence prior to the commencement of Operations and continue for the duration of the planning approval.
17.The dust monitoring system required by condition 16 shall be maintained and calibrated to the satisfaction of the WAPC on advice from the DEC.
18.The dust monitoring system shall automatically activate the sprinkler system provided for in the Sprinkler Reticulation Plan at a level of PM10 of 450ug/m3 average over a 15 minute period and continue to operate until dust levels are below a 450 ug/m3 average over a 15 minute period.
19.A Surface Water Management Plan shall be prepared to the satisfaction of the WAPC on advice from the City of Cockburn prior to the commencement of Operations.
20.The Surface Water Management Plan shall be implemented to the satisfaction of the WAPC on advice from the City of Cockburn.
21.A Noise Management Plan shall be prepared to the satisfaction of the WAPC on advice from the DEC prior to the commencement of Operations.
22.The Noise Management Plan shall be implemented to the satisfaction of the WAPC on advice from the DEC.
23.All green wastes shall be removed from the subject land within one month of being received to the satisfaction of the WAPC on advice from the DEC.
24.Access to and from Rockingham Road is to be left in and left out only.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT