BRIKMAKERS (A DIVISION OF BGC (AUSTRALIA) PTY LTD) and CITY OF SWAN
[2021] WASAT 66
•11 MAY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BRIKMAKERS (A DIVISION OF BGC (AUSTRALIA) PTY LTD) and CITY OF SWAN [2021] WASAT 66
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 31 AUGUST, 1-2 SEPTEMBER 2020
FURTHER SUBMISSIONS RECEIVED ON 22 AND 29 JANUARY 2021
DELIVERED : 11 MAY 2021
FILE NO/S: DR 318 of 2018
BETWEEN: BRIKMAKERS (A DIVISION OF BGC (AUSTRALIA) PTY LTD)
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development application - Extractive industry - Basic raw materials - Clay extraction - Noise - Dust - Amenity - Visual amenity - Zoning objectives - Orderly and proper planning
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.2, cl 4.2.16, cl 4.2.16(b), cl 4.4.2
Environmental Protection (Noise Regulations) 1997 (WA)
Interpretation Act 1984 (WA), s 5
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 64, cl 67(2)
Planning and Development Act 2005 (WA), Pt 4, s 241(1)(a)
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Application for review allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr M Hotchkin |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Hotchkin Hanly |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132
Sanders v City of South Perth [2019] WASC 226
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76
WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153
Warr and Town of Cambridge [2020] WASAT 126
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This application is for extractive industry and consequential filling on Lots 5 and 6 Great Northern Highway, Upper Swan (Land).
The City of Swan (the City or respondent) refused the application for a number of reasons including that insufficient information had been provided with respect to matters such as noise, dust and visual amenity. The respondent further considered that the Proposed Development was inconsistent with the Landscape Zone under the City of Swan Local Planning Scheme No 17 (LPS 17).
This matter was heard over three days in August and September 2020. For the reasons that follow, the correct preferable decision is to allow the application for review subject to conditions.
The Land
The Land:
(a)is 51.6245 hectares in area; and
(b)comprises a single house on Lot 6 but is otherwise vacant containing pasture and areas of native vegetation.
The Proposed Development
The Proposed Development involves, in substance:
(a)the excavation of up to 150,000 tons of clay over a 10 year period; and
(b)filling the excavated areas with recycled construction and demolition waste or clean fill (sand) (Proposed Development).
Other aspects of the Proposed Development are as follows:
(a)the excavated clay is intended to be used for the manufacture of bricks and related products;
(b)access and egress will be provided by a new crossover onto Walyunga Road, 150 metres west of the Great Northern Highway;
(c)the transportation of the clay from the Land will likely generate up to 200 truck movements per day, but only for three days per month (that is, 36 days per year);
(d)traffic movements associated with transporting fill materials to the Land are expected to closely reflect the traffic movements associated with the extraction of materials. The extent to which filling will continue after extraction is not set out. It is also the case that the filling activities will be undertaken by a third party;
(e)approximately 600m2 of native vegetation will be cleared from within the Walyunga Road reserve in order to provide adequate sight lines. On the Land, 3000m2 of native vegetation is proposed to be cleared;
(f)hours of operation (inclusive of truck movements) are between 7 am and 7 pm Monday to Saturday (excluding public holidays). The applicant has agreed not to cart materials from the Land on four Saturdays per annum (days to be nominated by the City);
(g)the area of operation for the extraction and filling will be approximately 6 hectares. A separate area of approximately 3.5 hectares will be used to stockpile the extracted clay from the clay pit over the course of the 10 year period (no screening, crushing or proceeding of extracted clay is proposed on the Land);
(h)earth bunds (for the purposes of visual screening and noise attenuation) will be created from the topsoil and overburden on the Land. The bunds will be 6 metres in height and approximately 15 metres wide;
(i)the on-site workforce during construction will be between two and six persons and during operational periods will be 25 persons (including truck drivers); and
(j)the Land will be progressively rehabilitated and, ultimately, revegetated. The rehabilitation will be completed within two years of the completion of the excavation.
The locality
The Land fronts Great Northern Highway. To the east, north and south of Great Northern Highway is land that is also zoned 'Landscape' pursuant to LPS 17. Land west of Great Northern Highway is zoned 'General Rural'.
The land immediately opposite the Land on Walyunga Road is used for extractive industry purposes (by the applicant). Walyunga Road provides the only access to the Walyunga National Park.
The locality is predominantly rural in nature. However, there are six dwellings (being sensitive land uses) and other noise sensitive premises within 500 metres of the proposed operational area of the Land. There are 13 dwellings within 1,000 metres of the operation area of the Land. The land that abuts the Land to the east (Lot 7) does not currently contain a dwelling and has, in the past, been used for grazing stock.
On 31 August 2020, I attended a site view together with the parties and the witnesses. We inspected the Land, Lot 7, Walyunga Road, the quarry immediately north of the Land as well as some locations on the opposite side of Great Northern Highway.
Planning framework
Planning schemes
The Land is zoned 'Landscape' in LPS 17 and 'Rural' in the Metropolitan Region Scheme.
The objectives of the 'Landscape' Zone are set out in cl 4.2.16 of LPS 17 and are as follows:
a)provide for low density ruralresidential development and associated rural residential activities, recognizing the visual characteristics of the landscape;
b)ensure as far as practicable, that the environmental and landscape characteristics of the area are not compromised by development and use of the land for either rural or residential purposes;
c)encourage the rehabilitation of degraded areas through selected replanting of indigenous flora.
Extractive industry is an 'A' use in the Landscape zone. An 'A' use is not permitted unless the local government has exercised its discretion by granting development approval following advertising.
Filling of land is not an identified land use in LPS 17. Pursuant to cl 4.4.2 of LPS 17, where a proposed land use cannot reasonably be determined as falling within the type, class or genus of activity of any other use, the local government may determine that the use:
(a)is consistent with the objectives of the particular zone and is therefore permitted;
(b)may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures set out in cl 64 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) in considering an application for planning approval; or
(c)is not consistent with the objectives of the particular zone and therefore not permitted.
Clause 4.2 of LPS 17 provides that:
The objectives of the zones are as set out under the respective headings in this clause. Without limiting their application to any discretionary decision, it is intended that the objectives will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table.
State Planning Policy 2.4
The Land is identified as an extraction area designated in State Planning Policy No. 2.4 Basic Raw Materials (SPP 2.4). SPP 2.4 was Gazetted on 28 July 2000.
The objectives of SPP 2.4 are to:
•identify the location and extent of known basic raw material resources;
•protect Priority Resource Locations, Key Extraction Areas and Extraction Areas from being developed for incompatible land uses which could limit future exploitation;
•ensure that the use and development of land for the extraction of basic raw materials does not adversely affect the environment or amenity in the locality of the operation during or after extraction;
•provide a consistent planning approval process for extractive industry proposals including the early consideration of sequential land uses.
Clause 6.3.1 of SPP 2.4 sets out a range of relevant considerations for planning authorities when determining an application for an extractive industry. These include:
•the significance of the resource in terms of its positioning in a priority resource location, key extraction area, or extraction area;
•the effect of the proposed extractive industry on any native flora and fauna, the natural landscape, groundwater quality, quantity and use, surface drainage and surface water quality, and sites of cultural and historic significance on and near the land. An application in an environmentally significant area may require referral to the Department of Environmental Protection (refer to the Environmental and Conservation Reference Chart located on each of the Resource Protection Working Plans);
•the effect of the proposed extractive industry on agricultural land;
•the effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area having regard to existing and future uses;
•the ability to rehabilitate the land to a form or for a use which is compatible with the long-term planning for the site and surrounding area;
•the availability and suitability of road access;
•the ability to stage the extraction operations to avoid conflicts with adjacent land uses.
Clause 6.4.1 of SPP 2.4 provides that applications for extractive industry are to be accompanied by a report and management plan which, among other things, demonstrates that sensitive land uses within 1,000 metres of the proposal will not be adversely affected.
The parties do not agree on the quality of the basic raw material or the status of the Land under SPP 2.4. Noting the scale of the regional mapping, it would appear that the Land is shown as being within an 'Extraction Area' for the purposes of SPP 2.4.
The respondent submits that the identification of the Land as an 'Extraction Area' was erroneous. This is because, for the purposes of SPP 2.4, an 'Extraction Area' is defined as being an 'existing extraction industry'. The respondent's point being that, plainly, there was no existing quarry on the Land at the time that SPP 2.4 commenced.
The respondent further submits that the mapping associated with the draft revised SPP 2.4 (discussed below) does not include the Land as an 'Extraction Site' or as a 'Significant Geographical Supplies Area'. The respondent submits that the fact the Land is not identified as either an 'Extraction Site' or as a 'Significant Geographical Supplies Area' is consistent with the Land being incorrectly designated as an Extraction Area under SPP 2.4. I will return to this issue later in these reasons.
In October 2018 the Western Australian Planning Commission (WAPC) prepared a revised SPP 2.4 and associated guidelines. The advertising of these was completed in January 2019.
The draft SPP 2.4 guidelines refer to separation distance guidelines of 300 500 metres for sand and limestone extractive industries which is derived from the draft Environmental Assessment Guidelines for Separation Distances between Industrial and Sensitive Land Uses which was advertised by the Environmental Protection Authority (EPA) in October 2015.
State Planning Policy 4.1
State Planning Policy 4.1 – State Industrial Buffer Policy indicates that EPA Guidance Statement No. 3 Separation Distances between Industrial and Sensitive Land Uses, June 2005 (GN 3) is to be used to avoid conflict between incompatible land uses.
Pursuant to GN 3:
(a)there is a recommended separation distance of 500 to 1,000 metres for clay extraction; and
(b)the likely impacts that will arise from clay extraction are noise and dust.
Local Rural Planning Strategy
The City prepared a Local Rural Planning Strategy in 2016 (Strategy). The Strategy includes a number of recommendations including the need to retain and manage the rural landscape where it is regarded as being significant.
The Strategy also recognises that there are existing quarries in the City and that there is a public interest in having ready access to basic raw materials. I will discuss the Strategy further when I discuss the planning evidence later in these reasons.
Bullsbrook Local Area Plan
The City has also prepared the Bullsbrook Local Area Plan (August 2018) (Bullsbrook LAP). The Bullsbrook LAP identifies the Land as being located, broadly speaking, within a 'Significant Geological Supply Node' (although strictly beyond the boundary of the plan).
Principles of interpretation
LPS 17 is a local planning scheme made pursuant to Pt 4 of the Planning and Development Act 2005 (WA) (PD Act). LPS 17 is also a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA). LPS 17 is to be read and applied in accordance with the orthodox canons of construction.
As a matter of legislative context, it is relevant that planning schemes are not ordinarily drafted by Parliamentary Counsel: Sanders v City of South Perth [2019] WASC 226 at [98]-[99]. As a result, planning schemes should be construed broadly and sensibly, not pedantically: Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing).
In accordance with the orthodox principles of construction, LPS 17 is to be read as a whole: City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 at [48] (Murphy JA, Mazza JA and Edelman J) (Lamont).
LPS 17, like all local planning schemes in Western Australia, include the deemed provisions which are to be read and applied as part of LPS 17.
Issues
The ultimate issue is whether the Proposed Development should be approved in the exercise of planning discretion. In determining that question, the parties consider, and I agree, that the following issues arise:
1.Whether the Proposed Development adequately addresses potential amenity impacts associated with noise, dust and visually.
2.Whether the Proposed Development is consistent with the objectives of the Landscape Zone.
3.The weight to be given to the status of the Land under SPP 2.4 (existing and draft).
Nature of the review
This matter arises in the Tribunal's review jurisdiction. My task is to hear the matter de novo and to make the correct and preferable decision: s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Evidence
In this matter I heard from 11 witnesses:
Respondent's witnesses
(a)Mr Gregory Rosher, the owner of Lot 7 (although Mr Rosher currently resides in Woodvale).
(b)Dr Peter Forster, an air quality specialist;
(c)Mr Martti Warpenius, an acoustic engineer; and
(d)Ms Bianca Sandri, a town planner.
Applicant's witnesses
(e)Mr Ray Parsons, an air quality specialist;
(f)Mr Vincent Scarvaci, the General Manager of Brikmakers;
(g)Mr Daniel Lloyd, an acoustic engineer;
(h)Mr Nathan Blackwell, Raw Materials Manager at Brikmakers;
(i)Mr Sean Fairfoul, a town planner; and
(j)Mr Garry Price, a specialist in managing the operation and impacts of quarries.
Overview of the case
Before I turn to focus on the issues that are in contest, I will provide a brief overview of the case.
The applicant (a brick manufacturer) wants to extract clay from the Land. The clay is, I accept, a scarce resource that is currently not available to the applicant elsewhere in the Perth metropolitan region: ts 25, 1 September 2020. I say 'accept' because the respondent produced no evidence to contradict or challenge the Mr Scarvaci's evidence in this regard.
The clay deposit the subject of the Proposed Development is a continuation of the same deposit that is quarried immediately north of Walyunga Road. However, despite being from the same deposit, the weathering profile for each site is different. The applicant wants to combine the clay extracted from the Land with the clay from north of Walyunga Road. Mr Scarvaci's evidence is that the clay extracted from the Land will be used in approximately 100,000 homes over the life of the proposed quarry.
The City's objects to the Proposed Development on the basis of amenity impacts (noise, dust and visual impacts) as well as the question of consistency with the zoning objectives within LPS 17.
The evidence
Dust
The dust experts, Mr Parsons and Dr Forster, did not ultimately disagree on much with respect to how dust could be managed. Mr Hotchkin, counsel for the applicant, submitted that, based in part on the experience at the existing quarrying operation north of Walyunga Road, the dust impacts from clay are much different from other hard rock quarrying as no blasting is required: ts 18, 1 September 2020.
Dr Forster filed a supplementary statement whereby, subject to compliance with dust management conditions, he was of the view that the dust risks from the Proposed Development can be adequately managed: Exhibit 19; ts 113, 2 September 2020.
Dr Forster considered that the wind speeds across the Land, which informs the risk associated with quarrying, should be recorded in real time via a monitoring station. The applicant objected to such a requirement: ts 114, 2 September 2020. Dr Forster's evidence was that a monitoring station was relatively low cost (in the order of $2,000): ts 114, 2 September 2020.
A further issue was dust monitoring at the boundary of the Land which the applicant objects to. Dr Forster considers there should be dust monitoring at the boundary for the first summer and autumn of excavation: ts 116, 2 September 2020.
The reason for Dr Forster's opinion was that the dust risks are higher during the summer as the clay dries out: ts 117, 2 September 2020. Dr Forster considered that the cost of renting the equipment as required would be in the order of $2,000 to $3,000 per month: ts 119, 2 September 2020. Mr Parsons suggested the total cost could be $10,000 a month. Dr Forster disagreed with this estimate: ts 119, 2 September 2020.
Mr Hotchkin challenged Dr Forster's experience in dust impacts arising from clay extraction. In doing so, Mr Hotchkin relied on the evidence of Mr Blackwell in his further witness statement where the dust risk arising from the Proposed Development was described as 'medium': ts 126, 2 September 2020.
The general thrust of Mr Hotchkin's cross-examination of Dr Forster is that the conditions relating to monitoring were 'overkill' and stemmed from Dr Forster's lack of experience with clay extraction. This is especially so having regard to the fact that clay will only be extracted 36 days per year. Mr Hotchkin put to Dr Forster that high winds are apparent without the need for monitoring and that 'common sense' was simply required: ts 128, 2 September 2020.
Dr Forster was also concerned about the dust risks arising from the filling operations. Dr Forster is concerned about a lack of controls in place to ensure that the fill material is sufficiently moist so as to reduce the dust risk: ts 130, 2 September 2020.
Because of the applicant's experience in clay extraction and with dust, Dr Forster ultimately conceded that dust monitoring of the extraction process was not needed taking account of the number of extraction days proposed: ts 132, 2 September 2020. Dr Forster remained concerned, however, about the fill operations and suggested monitoring was appropriate: ts 132, 2 September 2020.
Noise
The assessment of noise in the context of the Proposed Development is somewhat complicated. That is so because Lot 7, the lot closest to the Land, is currently vacant. However, the uncontested evidence of the owner of Lot 7, Mr Rosher, is that he intends to construct a dwelling on Lot 7 with the next two to three years. The construction of a dwelling on Lot 7 may have noise implications for the Proposed Development.
Because Lot 7 is currently vacant, the relevant assigned noise level under the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) is 60 decibels (dB). The Proposed Development, at this time, would comply with the Noise Regulations. Once a dwelling is constructed, the assigned level becomes 45 dB. If the Proposed Development is regarded a 'mining operation' for the purposes of the Noise Regulations, the assigned level then becomes 46 or 47 dB depending on where a dwelling is constructed on Lot 7: ts 33, 1 September 2020.
It is also the case that both noise experts assumed that the proposed noise bunds would be 4 metres high when, in fact, they are proposed to be 6 metres high. However, Mr Warpenius does not consider that the difference between a 4 and 6 metre high bund would be 'noticeable' due to distance between the bund and the noise source: ts 34, 1 September 2020. Mr Lloyd agrees the difference between a 4 and 6 metres bund would be negligible (in the order of 1 to 2 dB): ts 35, 1 September 2020.
The acoustic consultants discussed the 'assumed ground absorption factor'. What that means is that ground may be acoustically reflective (such as bitumen or water) or acoustically absorbent (such as grass). Mr Warpenius considers that the ground absorption level should be assumed in the summer months when the paddocks will not be 'lush': ts 36, 1 September 2020. If a ground absorption factor of 0.65 was assumed, the noise levels would increase by between 1 and 3 dB: ts 36, 1 September 2020.
Assuming a ground absorption factor of 0.65, Mr Lloyd agrees that the modelling of the 45 dB contour would be increased by 1 or 2 dB: ts 39, 1 September 2020. The acoustic experts noted that if and when a dwelling was constructed on Lot 7, and that dwelling was east of the 45 dB contour line (or 46 or 47 dB contour line if the Proposed Development is a 'mining operation'), then the dwelling would be located in an area where the assigned noise levels under the Noise Regulations would be exceeded: ts 40, 1 September 2020.
Mr Lloyd modelled four discrete phases of excavation within the extraction pit. The noise impacts arising from the first three of these phases is worse than the fourth phase as the last phase is close to a hill and also the noise bund: ts 40, 1 September 2020.
Mr Warpenius raised concerns that the acoustic modelling undertaken by the applicant may not capture the reality of the pit operations. In particular, he considered the modelling did not capture trucks moving in areas where there was no noise bund: Exhibit 13, ts 41, 1 September 2020.
Mr Warpenius modelled a number of sites at the boundary of Lot 7 which forecast dB levels on Lot 7 of between 51 and 55 dB. The modelled scenario involved two trucks on the Land. The noise emissions did not include a penalty for tonality: ts 42, 1 September 2020.
Mr Lloyd's response was that the absence of a noise bund is unlikely to increase the noise from truck movements given how far the truck would be from a noise bund: ts 44, 1 September 2020.
Mr Lloyd agreed that, having regard to the (two) truck movements modelled by Mr Warpenius, if a dwelling were constructed in the northwest moiety of Lot 7 (which is one of a few cleared areas on Lot 7) then the assigned noise levels would be exceeded: ts 47-48, 1 September 2020. He also agreed that the exceedance might be significant: ts 48, 1 September 2020.
Both experts agreed that good acoustic practice is to demonstrate how the noise emissions from the Proposed Development can be controlled to meet the assigned levels that will apply to a dwelling on Lot 7: Exhibit 15, page 4; ts 51, 1 September 2020.
Another issue was with respect to the filling operation. As the level of the fill increases, the noise attenuation benefits from the noise bunds decreases. Mr Lloyd agrees that as the fill nears the surface level, noise attenuation becomes more 'tricky': ts 55, 1 September 2020.
Planning
The planners gave evidence about the Proposed Development in the context of the objectives of the Landscape Zone in LPS 17. Mr Fairfoul agreed that the intent of the 'landscape [zone] to the east of Great Northern Highway, particularly into the MRS reserve, is something that is worthy of enhancing protecting and enhancing': ts 65, 1 September 2020.
Both Mr Fairfoul and Ms Sandri agreed that each of the three objectives for the Landscape Zone is directed towards preserving the landscape: ts 65-66, 1 September 2020.
Having regard to the significance that the zoning objectives place on landscape, both planners agreed that the visual impact of a proposal is an important consideration: ts 66-67, 1 September 2020. Both planners also agreed that this is consistent with the identification of the Land within a 'rural landscape precinct' with the Strategy: Exhibit 21, pages 33-34.
Both planners agreed that the visual amenity impacts would have to be considered from people travelling along Great Northern Highway, entering and exiting Walyunga National Park via Walyunga Road and land east of the Land (including Lot 7): ts 68, 1 September 2020.
Ms Sandri also queried whether there would be visual amenity impacts in terms of the Land being viewed from the Walyunga National Park. Mr Fairfould tried, but failed, to view the Land from the Walyunga National Park. Ms Sandri conceded that she had not attempted to view the Land from the Walyunga National Park: ts 68, 1 September 2020.
The planners discussed the issue of whether the existing bunds at the quarry on the northern side of Walyunga Road, which were observed during the site visit, adequately addressed visual amenity issues. Mr Fairfoul agreed that the visual amenity issues arising from the Proposed Development would not be adequately addressed with bunds such as those that exist at the quarry north of Walyunga Road: ts 72, 1 September 2020. We inspected these bunds at the site view at the commencement of the final hearing.
Mr Fairfoul agrees that the success or otherwise of the bunds, in terms of managing visual amenity, relies on the bunds being vegetated (as is planned to be the case): ts 72, 1 September 2020. Mr Fairfoul considers that bunds being 50% covered with vegetation within a few years would be adequate: ts 73, 1 September 2020.
Mr Fairfoul considers that the bund is not a long term answer for the Land. That's why, he says, that rehabilitation is important, including the planting of screening trees in front of the bund. The trees will be there long after the bund has been removed and will provide a better visual amenity compared to the short term: ts 77, 1 September 2020.
Ms Sandri remains concerned about the impacts of the proposed bunds on the visual amenity of the locality: ts 77, 1 September 2020.
The planners discussed the extent to which a 6 metre high bund on the Land would be visible from a dwelling if one were to be located in the cleared north-west portion of Lot 7. Ms Sandri considers that a bund of that size would be 'quite dominant in terms of its appearance': ts 80, 1 September 2020. Mr Fairfoul considered that the planting of intervening trees would very much restrict the ability to see the bund in the event that a dwelling is built in that location: ts 80, 1 September 2020.
Ms Sandri observes that the appearance of a bund, in the context of Landscape Zone and this rural setting is somewhat problematic. She opines that a bund 'creates a completely different type of amenity, one that is quite enclosing in what you would naturally feel being onsite in this area currently as being quite open': ts 81, 1 September 2020.
Both planners agreed that the 'most likely' location for a dwelling on Lot 7 is in the north-west corner: ts 81, 1 September 2020. Mr Fairfoul agreed, having regard to the fact that a dwelling is a 'P' use in the Landscape Zone. His evidence (at ts 81-82, 1 September 2020) was:
WITNESS, FAIRFOUL: [T]here needs to be a consideration that there might be a dwelling on the adjoining site. Again, there has been no application made for one, but noting the – the landowner has said that they intend to put one there, it's – for mine it's about how much weight do you give the possible or otherwise location of the dwelling, given there are other spots on the site that might accommodate a dwelling, although I acknowledge there are some constraints likely with those other locations.
Mr Fairfoul also gave the following evidence to a question as to why extractive industries were not 'protected' by LPS 17 and the fact that an 'Extraction Area' under SPP 2.4 is to only be protected in the 'shortterm':
WITNESS, FAIRFOUL: [T]here are resources that are identified within S[P]P 2.4, both the existing one and the proposed one is in the landscaped zone. I – and my view is that there is an expectation that extractive industries will be – will – are able to occur in the landscaped zone, and then ultimately those areas are to be rural residential, and or rehabilitated.
Both planners agree that if and when a dwelling is located on Lot 7 and noise levels from the Proposed Development exceed the levels permitted by the Noise Regulations, then the Proposed Development will have to attenuate that noise or risk the prospect of having to cease: ts 86, 1 September 2020.
Mr Fairfoul was taken to the Bullsbrook LAP in the context of paras 84 and 85 of his statement: Exhibit 10. His evidence was that the Bullsbrook LAP prioritises extractive industries over 'any other development'.
On this point, he was challenged by Mr Slarke, counsel for the respondent, on the basis that the Bullsbrook LAP does not seek to 'prioritise' extractive industries. This challenge was on the basis that the objectives of the Bullsbrook LAP are to, relevantly, 'mitigate the impacts of extractive industries': Bullsbrook LAP, page 61. The following exchange took place (ts 89, 1 September 2020):
SLARKE, MR: If you head – turn the page to part 3, and the actual Local Area Plan, and look at 9.2, objectives. So the actual objectives of the Local Area Plan. The first objective, the top priority is identified by the community were to (1) mitigate the impacts of extractive industries. Do you see that? So would you agree that it's not in fact the case that the Local Area Plan prioritises extraction activity over all other developments[?] In fact, it quite obviously doesn't do that. It intends to mitigate the impacts of extractive industries.
WITNESS, FAIRFOUL: No, I think it says both. I think – so it seeks to ensure that the extractive industries can occur. But it also seeks to ensure that the impacts of those one – managed by not putting other uses within the area that are identified. I mean, I would assume the usual mitigation of impacts of extracting industries along with that. Just note – and it is important to note that the area that's included as a significant geological supply node that extends beyond the boundary of that cell, if you will, does include our site.
Mr Hotchkin queried Ms Sandri on the Strategy. Ms Sandri, quite properly, conceded that the Land is identified (together with Lot 7) in an area earmarked for basic raw materials and that the first object of that area, under the Strategy, is to 'protect resource rich areas from incompatibility issues arising from adjacent land uses'. Ms Sandri also agreed that the Strategy does not refer to the need to protect sensitive land uses from extractive industries: ts 91, 1 September 2020.
Ms Sandri was also taken to the 'strategies' arising from the Strategy. Ms Sandri agreed that the first strategy relating to the Land was to 'ensure areas identified under [SPP 2.4] are protected': ts 92-93, 1 September 2020.
Ms Sandri was challenged on her evidence (Exhibit 14, para 99(5)) that the Proposed Development was 'not an activity encouraged by the draft SPP 2.4': ts 95-96, 1 September 2020.
Ms Sandri agreed that pursuant to the draft SPP 2.4 an 'Extraction Site' need not be identified in an area identified as a 'Significant Geological Supply' area for the purposes of the draft SPP 2.4. This is because an 'Extraction Site' 'provide[s] important local supplies and in some cases provide for a specific market niche over the short to medium term': ts 96, 1 September 2020.
The planners were asked about amenity in the context of a potential future dwelling at some point on Lot 7. Ms Sandri considered that the issue of amenity must be addressed now as an aspect of future amenity.
Mr Fairfoul's opinion was the immediate impact on Lot 7 is minimal because there is no evidence that it is being used in any sense. Mr Fairfoul considers that as and when a dwelling is built on Lot 7, then the impacts from the Proposed Development will be largely mitigated by the bund: ts 102-103, 1 September 2020.
Consideration of Issue 1
I am satisfied that the Proposed Development is reasonable in terms of its amenity impacts on noise and dust.
In terms of noise, I acknowledge that both Mr Lloyd and Mr Warpenius are experienced acoustic experts. This is not a case where I find that I prefer the evidence of one expert over another. What I do find is that I do not accept the central premise on which much of the noise evidence was based.
That is because I agree with Mr Hotchkin that much of the noise evidence is highly speculative and premised on the 'best guess' as to when and where Mr Rosher may choose to locate a dwelling on Lot 7. While I agree that it is appropriate that consideration be given to the fact that a single house is a permitted use of Lot 7, and I accept the uncontested evidence of Mr Rosher that he currently has an intent to build somewhere on Lot 7 in the next few years, that is as far as the evidence goes.
Ultimately, I have to make a decision dealing with the Proposed Development as its sits in its context and in the light of the applicable planning framework as it stands today. I do not consider it to be consistent with orderly and proper planning to refuse to approve what I regard as an appropriate development on the Land based on, in reality, nothing more than the present future intentions of an adjoining landowner. That is especially so having regard to the public interest – as encapsulated in SPP 2.4 - in ensuring that an adequate supply of basic raw materials are available for the Perth metropolitan region.
It is also the case, as I have set out elsewhere (such as in Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76 at [63]-[66]), that I am making a planning decision under LPS 17. I am not administering the Noise Regulations.
In considering this issue, I am mindful of analysis in Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 (Murphy JA, Mitchell JA, Beech JA) where the Court of Appeal stated (at [35]);
In broad overview, the [Environmental Protection Act 1986 (WA)] creates various offences which may be committed by the emission of noise from premises in excess of a standard prescribed by regulations. The Regulations do not themselves create an offence, but rather operate to define the circumstances when an offence may be committed under the Act. The Regulations exclude certain kinds of noise emission from the standards they prescribe, and provide for the Minister to approve the emission of noise above the prescribed levels where the premises cannot reasonably or practicably comply with the prescribed standard.
As the Court of Appeal explained, the Noise Regulations do not create offences per se. They set out the maximum permissible noise levels for a given use in a given context. The point being, for present purposes, that regardless of the decision I make, the Proposed Development (like any development) must comply with the NoiseRegulations. It is also relevant that, in the context of Lot 7 as it currently sits, the Proposed Development complies with the NoiseRegulations.
For this reason, I find that much of the noise evidence was speculative as it was directed to future possible exceedances of the NoiseRegulations. In the context of the Proposed Development, I am only prepared to give such issues limited weight. This is because, at this time there is no dwelling on Lot 7. Furthermore, there is no concrete evidence when a dwelling will be erected on Lot 7 or indeed where such a dwelling might be located. Indeed, Mr Rosher fairly admits that he is not sure where he might locate a dwelling on Lot 7: Exhibit 20 at para 7.
If and when a dwelling is constructed on Lot 7, and depending on where it is constructed, that may present some challenges for the Proposed Development. However, Mr Lloyd considers that a single house on Lot 7 can be accommodated, even though he agrees that some issues may be 'tricky'. The scenario identified by Mr Warpenius of multiple trucks moving, as discussed at [57], will need to be managed by the applicant. I therefore consider that to the extent that noise is raised as an issue, it should not result in the Proposed Development being refused.
On the question of dust, the experts largely agreed. The debate on dust, to the extent there was debate, was the conditions that ought to be imposed on an approval. I must say I appreciate the candour of Dr Forster. He gave his expert evidence thoughtfully and without fear or favour to his client's position on such matters. Based largely on Dr Forster's 'concessions', it is apparent that dust is not a reason to refuse the Proposed Development. I shall return to discuss dust in the context of the approval conditions.
The question of visual amenity has, I must say, troubled me somewhat. As I have reflected on this case, it is the question of visual amenity that I have come back to on a number of occasions. It would seem counterintuitive that a proposed extractive industry should be located in a Landscape Zone.
However, ultimately I have determined that, in this instance, it is appropriate. It is difficult to explain my reasons on that issue in isolation from the zoning and its objectives. I will therefore set out my findings on visual amenity more fulsomely when I address Issue 2. That is the issue to which I now turn.
Issue 2 visual amenity and zoning
LPS 17 was Gazetted on 18 February 2008. The Land was identified as being an Extraction Area under SPP 2.4 as at July 2000. Therefore, LPS 17 was prepared in the light of SPP 2.4.
To my mind, the decision to zone the Land 'Landscape' in circumstances where the Land was, at that time, already identified as being an extractive industry cannot have been done with the objective of stymieing or defeating the intent of SPP 2.4.
To do so, would not be consistent with the principle of orderly and proper planning. Indeed, more recent history suggests that is not the case. This is because the City's Strategy (from 2016) identifies the Land as a resource extraction area. Equally, the Bullsbrook LAP (from 2018) acknowledges the Land is land from which basic raw materials may be extracted. It therefore follows that the City acknowledges this locality as an area where extractive industries may operate. The City's strategic planning instruments, as they relate to the Land, need to be reconciled with the zoning in LPS 17.
Before I progress further, I pause to consider the objectives of the Landscape zone. It is also not without significance that the Tribunal recently considered the question of development within the Landscape Zone in the context of LPS 17.
In WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153 (WA Timber Supplies) involved a proposal to deliver fill to two sites which involved, for access purposes, development on a lot that was zoned Landscape in LPS 17. In this case, I invited the parties to make submissions on the significance or otherwise that is to be attached to the Tribunal's analysis of the zoning objectives for the Landscape Zone in WA Timber Supplies.
In WA Timber Supplies the Tribunal considered that the objectives of the Landscape Zone should not be characterised as merely 'high level, ambitious statements': at [146]. The Tribunal also stated (at [146]):
It is clear from the terms of cl 4.2 of the Scheme that zone objectives are intended by the Scheme to have a central role in the exercise of planning discretion as to whether a proposed development, including a development involving an innominate use, should be approved.
In WA Timber Supplies the Tribunal also recognised that, in the Landscape Zone, the visual quality of an area is an important aspect of amenity: at [160].
However, as is properly acknowledged by the parties, the Proposed Development is to be distinguished from the facts in WA Timber Supplies. As I stated, the proposal in WA Timber Supplies involved only the delivery of fill. It did not involve the extraction of basic raw materials which, as I will come to when I address Issue 3, is to be regarded as being consistent with the applicable planning framework.
It is also the case, as was explained in WA Timber Supplies, the objectives of the Landscape Zone are not to be read as being a 'requirement' of LPS 17. In Warr and Town of Cambridge [2020] WASAT 126, I noted that a development is not required to meet all, or indeed any, of the objectives of a zone in order to be approved: at [214]-[215].
Clause 4.2 of LPS 17 provides that the zoning objectives are relevant to determining the appropriateness of a proposed development. That principle, at some level, is also reflected in cl 67(2)(a) of the deemed provisions which require due regard to be given to the aims and provisions of LPS 17 in the exercise of planning discretion.
Clause 4.2.16(b) of LPS 17 sets out the following objective for the Landscape Zone:
[E]nsure as far as practicable, that the environmental and landscape characteristics of the area are not compromised by development and use of the land for either rural or residential purposes[.]
In the context of this objective, to me the word 'practicable' is not without significance. It tends to acknowledge that some rural or residential activities will have an impact on the landscape, but that practical efforts need to be made to minimise those impacts. Such a construction is consistent with the decision to impose a Landscape Zone on a locality which had been identified as an area for extractive industry.
Ultimately, what I consider the Landscape Zone seeks to ensure, as it relates to the Land and other areas identified as being areas where basic raw materials may be extracted, that the landscape is maintained, as much as it practically can be. Further, once any non-rural industry (such as an extractive industry) ceases to operate, the landscape is to be restored.
I accept the respondent's submissions that landscape considerations, and in particular the preservation of landscape, is the central objective of the Landscape Zone. However, I must apply the planning framework as a whole and there is something of a disconnect between imposing a Landscape Zone on land which is identified as and which otherwise has been found to be an area where commercial quantity basic raw materials may be extracted. That is an inherent tension that I must resolve.
As was made clear in the evidence of the planners, the potential of the Land for extractive industries was also more recently identified in the Strategy of the Bullsbrook LAP. I will address this issue in more detail when I come to Issue 3.
In terms of visual amenity, I find that the Proposed Development will have an adverse impact on the landscape qualities of the Land. Those impacts can, to some extent, be mitigated through the proposed bunds.
In WA Timber Supplies the Tribunal was not satisfied that a vegetated bund was consistent with the objectives of the Landscape zone. I remain of that view. However, in saying that, the bund in WA Timber Supplies was far more extensive than is the case here and involved the construction of a not insignificant 'bridge' over a watercourse and would also result in the removal of vegetation. It follows that I share Ms Sandri's concerns about the visual impacts arising from the use of bunds.
The Proposed Development will involve trucks and machinery and will result in some noise and dust. The Proposed Development will affect the views across the Land from Lot 7 and the views of the Land from Walyunga Road as well as the Great Northern Highway. The impact will not be the same as hard rock quarrying (which involves blasting), but the impact will still be adverse. I accept and find that to be the case.
However, I am left to make planning sense of a situation where a Landscape Zone was imposed on land that had been identified, for a long period of time, as being suitable for basic raw materials extraction. The respondent also recently confirmed that the Land was considered to be an extraction area in the Strategy. The Strategy is from 2016. Likewise the Bullsbrook LAP is from 2018. These are far more recent instruments than LPS 17. It is also the case that Lot 7 is currently vacant.
While the objectives of the Landscape Zone may contemplate residential and non-rural activities, in my view, it still cannot be said that the Proposed Development is consistent with these objectives viewed as a whole.
That is, I accept the respondent's submissions that, at the heart of the Landscape Zone, is an intent to preserve the landscape. The fact is that there will, on any view, be adverse amenity impacts arising from the Proposed Development, the scale of which may be significant. For this reason I find that the Proposed Development would be inconsistent with the objectives of the Landscape Zone.
However, having made that finding I should also say that, in the context of the Proposed Development and for reasons which I will come to, I am not prepared to treat the objectives of the Landscape Zone as, in effect, operating as a prohibition of activities such as resource extraction.
That is so notwithstanding the analysis of the objectives of the Landscape Zone by the Tribunal in WA Timber Supplies. As I have outlined, the Proposed Development and WA Timber Supplies are distinguishable on their respective facts.
Furthermore, the zoning objectives are just one factor that falls to be considered in the exercise of planning discretion.
Issue 3: State Planning Policy 2.4 (draft and proposed)
It is not in contest that the Land was identified as an Extraction Area in SPP 2.4. However, the respondent says that designation was erroneous. By reason of s 241(1)(a) of the PD Act as well as cl 67(2)(c) of the deemed provisions, I am required to give due regard to SPP 2.4 as a relevant State Planning Policy.
To the extent that the respondent urges me to focus on the question of whether the identification of the Land as an Extraction Area in SPP 2.4 was in error, I decline to do so for two reasons. Firstly, that is not my role. Secondly, while the Land was plainly not actively being used for extractive industry purposes at the commencement of SPP 2.4 that is, in my view, not really the issue. I consider the more salient point to be that the Land has long been identified as being a basic raw materials resource in both State and local planning instruments.
In the context of the draft SPP 2.4, I accept that this draft instrument, which has been advertised, as a matter of orderly and proper planning, is a relevant consideration in the exercise of discretion.
I also accept that the Land is not a significant geological supply for the purposes of draft SPP 2.4. However, likewise, that is not the point. Under the draft SPP 2.4 an Extraction Site need not be identified as a significant geological supply.
To my mind, whatever the existing and draft SPP 2.4 may indicate as policy instruments, I am still left with a proposal to extract commercial grade basic raw materials on the Land. To me, that has the effect of making the debate about whether or not the Land should have been identified as an Extraction Area under SPP 2.4 somewhat academic.
It is also relevant, in my view, that there is an existing quarry immediately to the north (indeed it is part of the same clay deposit). That inclines me to the view that this general locality has long been identified as an area where basic raw materials may be extracted.
I therefore consider that considerable weight should be given to the identification of the Land, as land containing basic raw materials, under SPP 2.4. However, I do accept that, strictly, the Land was not an active quarry at the time that SPP 2.4 commenced and therefore was not an Extraction Area.
Consideration of the ultimate issue
Regardless of any conclusion I reach on each of the cl 67(2) factors of the deemed provisions, I retain an overarching discretion in relation to the Proposed Development.
In this instance, the Proposed Development has long been identified as a being within a viable resource extraction area in policy instruments at both the State and local level. That is a factor that inclines me towards approving the Proposed Development.
In terms of amenity impacts, I am satisfied that there will be no adverse dust impacts (subject to conditions) and, as things currently stand, there are no noise issues that would warrant refusal of the Proposed Development. Whether the question of noise becomes an issue at some future point will depend on if and when a single house is constructed on Lot 7 and the location of that dwelling. Consideration of those amenity issues at this time also inclines me towards approval.
However, there is something of a disconnect in that the Land is now, and has been for some time, zoned Landscape under LPS 17. The Proposed Development is not consistent with the objectives of the Landscape Zone which focus on protecting the landscape qualities of the locality. That is a factor that inclines me towards refusal.
That leaves the question of visual impacts. As I have explained, I am satisfied that there will be visual amenity impacts arising from the Proposed Development. Those visual impacts will be in the form of the trucks and machinery as well as the ongoing presence of bunds (whether they be vegetated or not). Those visual impacts would be adverse and therefore, as I have set out above, would be contrary to the objectives for the Landscape Zone. The visual impacts militate against approving the Proposed Development.
Based on the above summary, it is clear that there are factors that go for and against the Proposed Development, each of which need to be weighed and balanced.
To my mind, the question for me ultimately reduces to one of orderly and proper planning. The question of orderly and proper planning arises under cl 67(2)(b) of the deemed provisions. Before I progress, I am mindful of Pritchard J's analysis of the concept of orderly and proper planning in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [178][183] (Marshall). In Marshall Pritchard J explained, at [182] that:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
(internal citations omitted)
In my opinion the Proposed Development is consistent with, or can be said to represent, orderly and properly planning in that the Land has been identified, long before LPS 17 included the Land in the Landscape Zone, as being suitable and appropriate for extractive industry. It is also the case that the Land is identified as being a resource extraction area in the Strategy and the Bullsbrook LAP.
It follows, having regard to Marshall at [182], that there is a sound planning basis to allow the Proposed Development even though, I accept, there will be some adverse amenity impacts and that it will also be inconsistent with the objectives of the Landscape Zone.
I should also add that to the extent that I accept that there will be adverse amenity impacts, I consider these to be reasonable in the circumstances. I do not accept that the mere presence of trucks and machinery in a rural area is an outcome that needs to be altogether avoided by the planning framework. Furthermore, the more localised impacts of noise and dust only really arise for consideration (and consequently management) as and when a dwelling is constructed on Lot 7.
While I have reservations about reliance on the proposed bunds, I am satisfied that in this instance their impacts will be reasonable. That is especially so having regard to the fact that the bunds will be vegetated and complemented by other plantings. While I acknowledge and share Ms Sandri's concerns, in this instance, I am not satisfied that the Proposed Development should be refused based on visual amenity considerations.
In my view, considering and administering the planning framework as a whole, I am inclined to approve the Proposed Development.
In making this decision, I have given the most weight to the fact that the Land has long been identified at both the State and local level as being a resource extraction area. I acknowledge that there will be some adverse amenity impacts arising from the Proposed Development. However, I consider that those amenity impacts can largely be managed. The applicant is on notice that as and when a dwelling is constructed on Lot 7, it will have to deal with that reality.
In my view, it is also relevant that resource extraction is not a permanent and enduring use of land. It is a progressive, but ultimately temporary, land use. After the extractive industries cease, the landscape will be restored. That is, in the long term, the objectives of the Landscape Zone will be met. However, for an interim period, the basic raw materials are able to be extracted.
I find that the correct and preferable decision, at the time my decision on the review falls to be made, is to approve the Proposed Development.
In terms of conditions, I have read and considered the applicant's detailed submissions on the respondent's draft 'without prejudice' conditions. I have imposed appropriate conditions to ensure inter alia:
(a)the operations will be adequately screened in a visual sense. This will require an appropriate Visual Management Plan that is prepared pursuant to the WAPC's guidelines. Given that this is a Landscape Zone, I consider that such a requirement is appropriate;
(b)there will be adequate monitoring during the life of the Proposed Development to safeguard the amenity of the locality;
(c)the operations remain at the intensity that has been applied for and approved;
(d)that adequate arrangements will be made to ensure that dust will be managed during the filling operations, especially as these will be undertaken by a third party. I have included requirements that water be used to manage dust noting Dr Forster's concerns in this regard. However, for costs reasons, I have decided to include a requirement for water to be used to manage dust, as opposed to the monitoring regime recommended by Dr Forster. This requirement, to me, strikes a reasonable balance especially given that Lot 7 is currently vacant; and
(e)the Land will be appropriately revegetated at the cessation of operations. In this sense, it is important that conditions be imposed to ensure that there is some certainty as to when operations will cease (including the fill operations).
Orders
The Tribunal orders:
1. The decision under review is set aside.
2. The application for review is allowed subject to the conditions set out in Schedule A below.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
11 MAY 2021
Schedule A
(1)This approval is for the use of Lots 5 and 6 (No. 1728) Great Northern Highway, Upper Swan an 'Industry – Extractive' as defined in the City of Swan Local Planning Scheme No.17, and for the subsequent filling and rehabilitation of that land in accordance with the following conditions.
(2)All excavation must cease by no later than 10 years after the grant of the excavation licence referred to in condition 3. The landowner's obligation to fill and rehabilitate the land pursuant to the conditions of this approval is not subject to that time limit but is specified by condition 11.
(3)The development shall not commence until the landowner has obtained an excavation licence pursuant to the City's Extractive Industries Local Law.
(4)Prior to works commencing on site, an updated Dust Management Plan shall be submitted to the City which incorporates the Brikmakers Risk Matrix and Dust Management Program of July 2020, to constitute, subject to condition 5, the Approved Dust Management Plan.
(5)Item 13 of the Approved Dust Management Plan referred to in condition 4 is to be modified as follows:
(i)Dot point 6 shall be deleted and replaced with:
'Grade and water work area and access routes each day'.
(ii)Dot point 7 shall be deleted and replaced with:
'Start each day with a water cart operation'.
(6)Excavation works must not commence before all bunds shown in the SERS Visual Management Plan (forming part of the Development Application Report dated October 2019) have been formed, the bunds may be modified as per condition 17.
(7)There is to be a nil justified 'dust complaints' requirement for acceptable performance in dust control, and if complaints are made and justified, the work practices are to be reviewed and improvements made to avoid a repetition of the emission.
(8)The activities of:
(i)digging and stockpiling;
(ii)backfilling; and
(iii)carting,
shall be carried out at separate times.
(9)Prior to works commencing on site, a detailed Rehabilitation Plan shall be submitted to the City and approved. The Rehabilitation Plan must include the following:
(i)a recent spring flora and fauna survey of the site;
(ii)a detailed description of the measures that will be implemented over the life of the project to manage the remnant vegetation and habitat on the site;
(iii)details of the staging, final ground level contours, and revegetation provisions (e.g. depth of topsoil, seeding, plant species, location and density) for the site;
(iv)rehabilitation strategies to achieve reestablishment of endemic vegetation (including establishment of canopy, understorey and ground strata) with a focus on species that are consistent with the Threatened Ecological Community identified within the area;
(v)detailed performance and completion criteria for the implementation of the Plan, including details of who will be responsible for monitoring, reviewing, and implementing the Plan;
(vi)a seasonally based program to monitor the effectiveness of these measures and progress against the performance and completion criteria; and
(vii)any further mitigation measures identified in the approved revised Visual Management Plan required by Condition 16.
(10)The land shall be remediated and revegetated in accordance with the approved Rehabilitation Plan and the finished landforms and planting plan (Figure 11 of the amended development application). To the extent of any inconsistency between the two, the approved Rehabilitation Plan shall prevail.
(11)Rehabilitation in accordance with the approved Rehabilitation Plan must be completed within 2 years after excavation on the site is completed or within 12 years after the commencement date set by condition 3, whichever is the earlier. The fill must be clean fill approved by the Department of Water and Environmental Regulation (DWER).
(12)Prior to works commencing on site, detailed design drawings and specifications for the proposed crossover on Walyunga Road, including the extent of clearing of vegetation within the road reserve to allow clear sightlines for traffic, shall be submitted to, and approved by, the City.
(13)The Walyunga Road crossover shall be constructed of asphalt and drained in accordance with the approved design drawings and specifications. The landowner shall maintain the crossover and vegetation within the verge to ensure unobstructed vehicle sightlines at all times.
(14)Prior to works commencing on site, an acid sulphate soils self-assessment form and, if required as a result of the self-assessment, an acid sulphate soils report and an acid sulphate soils management plan shall be submitted to the DWER.
(15)Prior to works commencing on site, an updated Noise Management Plan shall be submitted to the City and approved. The updated Noise Management Plan must:
(i)identify all earth bund heights and their locations, and all other additional noise control measures proposed;
(ii)demonstrate that the forecast noise levels on the boundary to Lot 7 (No.104) Walyunga Road comply with the Assigned Levels appropriate for Noise sensitive premises: any area other than highly sensitive area; and
(iii)include a proposal for noise monitoring to occur within 12 weeks following the commencement of benching operations, to determine whether noise emissions are compliant.
(16)Prior to any site works, a revised Visual Management Plan (VMP) is to be prepared in accordance with the methodology within the Western Australian Planning Commission's Visual Landscape Planning in Western Australia: a manual for evaluation, siting and design (2007) shall be submitted to, and approved by, the City. The revised VMP must include the following:
(i)a visual landscape evaluation to provide information on the landscape values in the area;
(ii)a detailed description of the main visual components of the development, including:
(a)a viewshed analysis to determine the level of impact on key locations surrounding the project site, including a plan identifying the location of viewpoints from key public or private viewing locations surrounding the site;
(b)additional photographic examples showing the existing views surrounding and within the site;
(c)additional photomontages to demonstrate the view to the proposed development from key public or private viewing locations around the site;
(d)photographs of the existing vegetation identified for removal to show the proposed impact on landscape character;
(iii)a visual impact assessment to identify the potential impacts of the development on the surrounding landscape.
(17)The development plans are to be amended in accordance with the approved amended Approved Dust Management Plan, the revised VMP, Noise Management Plan and Rehabilitation Plan, to address any changes to the siting of internal haul roads, waterway crossings, and earth bunds as identified within those updated management plans. The amended plans must be submitted to, and approved by, the City prior to any site works commencing.
(18)Earth bunds and other approved visual impact mitigation measures shall be installed and maintained on the site and in surrounding approved locations in accordance with the approved revised VMP and updated Noise Management Plan to the satisfaction of the City.
(19)Prior to the extraction of materials from the clay pit the bunding plus any additional approved visual mitigation measures, must, as much as is reasonably possible, screen the clay pit from the view of Lot 7 (No.104) Walyunga Road to reduce noise and dust emissions. The visual mitigation measures must be maintained to the satisfaction of the City.
(20)Operating hours for the development are restricted to 7am to 7pm on Monday to Saturday. No operations shall occur on Sundays and public holidays or on the four Saturdays per annum nominated by the Chief Executive Officer of the City to be nocartage days.
(21)Access and egress to the site by heavy vehicles (haulage trucks) shall be restricted to the Walyunga Road crossover identified as 'entry' on the approved Site Plan. Access and egress to the site directly via Great Northern Highway by heavy vehicles is not permitted.
(22)Subject to any further Bed and Banks permit or approval being granted by the DWER for the construction of a further bund, a 50 metre separation buffer shall be maintained between the waterway on Lot 6 and the adjacent excavation areas and associated development, including earth bunds, overburden dumps and other material stockpiles. The buffer perimeter shall be pegged or otherwise clearly demarcated to prevent encroachment by works and vehicles during extraction operations on the site.
(23)Stormwater produced on the site shall be retained, treated and/or disposed on the site in accordance with the approved Water Management Plan. If the development causes any obstruction, alteration or interference with a natural flow of surface water to the detriment of surrounding land, then the landowner shall rectify the cause of such obstruction, alteration or interference to the requirements of the City.
(24)The landowner shall implement appropriate measures within the time and in the manner directed by the City in the event that sand or dust is blown or drifts from the site.
(25)The management measures in all approved plans shall be implemented and complied with at all times.
(26)Except for works associated with the crossover to Walyunga Road, no excavation works, stockpiling, building, structure, hardstand, access way or any other development other than earth bunds and other approved visual impact mitigation measures shall be located within 20 metres of the boundary of any lot not subject to this approval.
(27)No processing of any excavated material, including screening or washing, or grinding or milling works shall occur on the site.
(28)No on-site fuel storage or major servicing of vehicles (i.e. not including field repairs) shall occur on the site.
(29)The landowner shall at all times ensure sufficient water is available to the site to undertake dust suppression and firefighting as required, including by means of water transported by tanker onto the site if necessary.
(30)All construction works within the road reserve including the crossover, service adjustment, clearing of vegetation, and kerb re-instatement (if any) shall be built and maintained to the City's specifications. Failure to do so may result in these works being removed and reinstated by the City at the landowner's expense.
(31)The landowner is to ascertain the location and depth of any services that may interfere with this development. Any adjustment to these services required as part of this approval shall be arranged by the landowner prior to works commencing on the site. Any adjustment must be approved by the relevant service authorities and will be at the landowner's expense.
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