BUSH BEACH HOLDINGS PTY LTD and CITY OF MANDURAH

Case •

[2014] WASAT 50

•

2 MAY 2014

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   BUSH BEACH HOLDINGS PTY LTD and CITY OF MANDURAH [2014] WASAT 50

MEMBER:   MR P McNAB (SENIOR MEMBER)

MR P CURRY (SENIOR SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   2 MAY 2014

FILE NO/S:   DR 75 of 2012

BETWEEN:   BUSH BEACH HOLDINGS PTY LTD

Applicant

AND

CITY OF MANDURAH
Respondent

Catchwords:

Town planning - Development application - Conditions - Extractive industry - Raw materials - Sand quarrying - Further expansion of quarry operations - Conditional approval given by local government - Final determination of conditions to be imposed limiting environmental and amenity impacts from noise - Early morning operating hours and conditions - Early morning operations noise management framework - Operational management plan - Regulation of start-up activities - Whether activities pre-7 am can take place as of right - Whether advance notice of activities pre-7 am should be given to local government - Whether types and numbers of vehicles permitted to be used on site should be specified - Regulation of total tonal noise component of site vehicles - Tonal noise received at sensitive premises to be limited by reference to all plant and vehicles on site - Evolving vehicle and equipment technical environment - Tribunal determining remaining conditions in dispute - Tribunal endorsing final conditions to be attached to original development approval

Legislation:

Planning and Development Act 2005 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)

Result:

Final conditions determined by Tribunal

Summary of Tribunal's decision:

In 2013, the applicant, Bush Beach Holdings Pty Ltd, was successful in its application to the Tribunal for a review of certain conditions of planning approval imposed by the respondent, the City of Mandurah in connection with the approval given by the City for the continued operation and expansion of a sand quarry near Old Coast Road at Herron.

The issues determined by the Tribunal in that first hearing related to the hours and conditions of operation in relation to noise management, and the statutory determination of relevant noise standards: see Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139. The Tribunal directed the parties to bring back to the Tribunal a draft set of consolidated and final conditions for the approved development, being conditions not inconsistent with the Tribunal's published reasons in the first hearing.

After lengthy negotiations between the parties, three conditions of the respondent's draft of 27 consolidated and final conditions (received by the Tribunal in March 2014) remained in dispute.  Accordingly, the Tribunal was called upon to resolve these outstanding matters.

The conditions in dispute related to the opening hours and control of site operations in relation to noise, and parts of the framework for operational noise management pre-7 am, and during the night­time period (that is, before 7 am) under the Environmental Protection (Noise) Regulations 1997 (WA).

The City's condition 3 required the applicant to submit an operational management plan to regulate all pre-7 am site activities.  The operational management plan would regulate all start-up and site preparation activities prior to 7 am, as well as site opening and truck movement and loading activities.  The operational management plan would also cover a system for notifying neighbours when pre-7 am operations were proposed.  The area of dispute that arose out of condition 3 related to whether more than one front-end loader could operate prior to 7 am.

The City also sought to specify the numbers and types of site vehicles used in sand extraction which were to be permitted on site in the daytime period: see condition 19.  The applicant sought approval to operate several vehicles without specification of make and model and offered to control tonal noise from all engines and mufflers.

The final disputed condition (condition 22) required the applicant to seek advance approval from the City for any requests to open the site and to load trucks pre- 7 am.  This would cover the case where there was a particular period of high demand for sand.  Such arrangements were of longstanding practice.  The applicant sought to have the requirement to obtain specific approvals substituted by a requirement to provide the City with only advance notification of dates of loading operations operating from 6 am.

As to condition 3, the Tribunal agreed with the City that with regard to night­time activity and noise (that is, pre-7 am), the acoustic evidence in the first hearing had been confined to the period 6 am to 7 am and had established the likely regulatory compliance of only one front-end loader operating at this time, if trucks were accessing the site and being loaded during that hour.  Thus, the Tribunal determined that only one front­end loader would be permitted to load trucks prior to 7 am.

With respect to condition 19, the Tribunal agreed with the applicant that having regard to an effective 20-year approval for the operation (as had been agreed to by the City), a proposed additional condition, referenced to the Environmental Protection (Noise) Regulations 1997 (WA) to prevent tonal noise (received at the neighbouring sensitive premises) from all site plant and vehicles, was a more useful condition than that which stipulated vehicle types and models, as such vehicles would become progressively outmoded. The applicant was permitted an increased number of loaders and other plant in the daytime period.

With regard to the issue of whether pre-7 am (that is, the night­time period) approvals for loading operations were to be by way of simple notification (effectively making them 'as of right') or whether such events should be by way of approval on notice, the Tribunal agreed with the City.  In the first hearing, the Tribunal had already determined, in effect, that advance notice would be required to enable proper regulatory responses and supervision by the City, given that such operations were to take place in the night­time period.  Therefore, condition 22 in the form proposed by the City was approved by the Tribunal.

The Tribunal endorsed an amended and consolidated set of 27 final conditions to be attached to the City's development approval.

Category:    B

Representation:

Counsel:

Applicant:     Mr L Stephens (Acting as Agent)

Respondent:     Mr C Slarke

Solicitors:

Applicant:     N/A

Respondent:     McLeods

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

Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139

Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

  1. The background to, and the circumstances of, this aspect of the review are to be found in Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139 (Bush Beach).  The following order 2 was made in that stage of the review:

    The parties are to bring into the Tribunal within 21 days or such longer period as the Tribunal allows a draft set of consolidated and final conditions for the approved development not inconsistent with the Tribunal's reasons accompanying these orders.

  2. These reasons for decision concern those 'consolidated and final conditions' where no agreement has been reached between Bush Beach Holdings Pty Ltd (applicant) and the City of Mandurah (City or respondent).

  3. The reasons should be read, of course, consistently with the published decision in Bush Beach.

Unresolved final conditions

  1. There are three conditions of the respondent's draft consolidated and final conditions (received by the Tribunal from the respondent on 17 March 2014) where no agreement between the parties could be reached.  They are:

    •condition 3 ‑ the hours and conditions of operation;

    •condition 19 ‑ part of the 'noise management' framework; and

    •condition 22 ‑ part of the 'notice, ongoing reporting and directions' framework.

  2. The challenge to condition 22 relates to whether requests for approval by the City or, more simply, notifications by the applicant, are required to regulate particular pre‑7 am activities contemplated under conditions 3 or 19 (or both).

Condition 3

  1. As the Tribunal said in Bush Beach at [21], condition 3 reflects the main issue in the review:

    Thus, the central issue in the review is the form in which condition 3 appears, and whether it should permit discretionary movements pre‑7 am, or regulated truck movements, as of right, from as early as 5.30 am.

  2. For convenience of reference, the whole of condition 3, as drafted by the respondent, is as follows:

    (a)Unless otherwise approved by the City of Mandurah the hours of operation for the development shall be 7 am to 6 pm Monday to Saturday.  The development shall not operate on Sundays or public holidays.

    (b)The Applicant must within thirty (30) days lodge for approval by the City a pre‑7 am operational management plan (pre‑7 am OMP).  The pre‑7 am OMP shall include, without limitation, the following:

    (i)The site shall not be opened prior to 6 am. This precludes preparatory site work on and by a front end loader (including maintenance, start-up and the preparation and excavation of loading areas);

    (ii)No more than twenty trucks may enter the site prior to 7 am except in special circumstances approved by the City;

    (iii)Site induction procedures and instructions which are to be provided to all personnel;

    (iv)Only one front end loader may operate before, except in special circumstances approved by the City;

    (v)The location and orientation of the front end loader within the pit so as to minimise the receipt of noise at sensitive premises, particularly Lot 40;

    (vi)A system for notifying neighbours when pre‑7 am operation is proposed;

    (vii)except in special circumstances the use of a water truck prior to is not permitted; and

    (viii)The management of road trucks.

    (c)Where approval is given for the development to operate prior to 7 am, the operation must comply with the approved pre‑7 am OMP.

  3. We note that the applicant did not propose any alternative text for condition 3(a).  It is currently drafted by the respondent, as appears above, as follows:

    Unless otherwise approved by the City of Mandurah, the hours of operation for the development shall be 7 am to 6 pm Monday to Saturday. The development shall not operate on Sundays or public holidays.

  4. However, condition 3(b), as also appears above, requires the applicant to submit an operational management plan (OMP) to regulate pre‑7 am activities, including start‑up or preparatory activities.

  5. Draft condition 3(a) is not accepted by the applicant to the extent that the condition proposes an approval mechanism to be substituted for a notification mechanism.  Thus, for pre‑7  am operations, such operations would not require specific approvals by the City: see Bush Beach, at [81], on the past history of case-by-case approvals by the City.

  6. There are two other elements of disagreement arising out of condition 3.  Broadly stated, these are as follows:

    •what start‑up activities, if any, may be permissible from as early as 5.30 am; and

    •can all or any elements of activities pre‑7 am be regarded 'as of right' (that is, not directly regulated by the respondent, or in an OMP?

  7. The context of a pre‑7 am OMP, as is contemplated by condition 3(b), was understood differently by the parties.  The City submitted that the 'Australian norm' for such an operation is generally a start‑up of no earlier than 7 am.  This is a matter which the Tribunal addressed in Bush Beach at [77].

  8. The Tribunal further noted , at [81] of Bush Beach, that the previously informal system under which pre‑7 am requested start-ups and loading operations for large sand supply contracts at this site had been, in effect, regulated on a case‑by‑case basis.  It appears that this arrangement had been generally successful.

  9. The applicant submitted that site preparatory activities carried out before the site was opened amounted to readiness preparations in advance, as would be standard practice for any business (for example, a shop).

  10. The Tribunal could support that view but only to the extent that such preparatory activities should only be those activities which are unlikely to generate noise received at the nearby sensitive premises (Lot 40) during the night‑time period, meaning before 7 am (under normal operating conditions), or otherwise before 6 am under special authorisation from the City.

  11. Condition 3(b)(i), according to the City's draft, would state that where special permission is given to operate pre‑7 am, the site would not be opened prior to 6 am and that preparatory work on or by a front‑end loader (FEL) before that time should be precluded.

  12. The applicant's submissions addressed both preparatory activities before 7 am to enable operational readiness for opening of the site at 7 am under normal operations, and equivalent preparatory work which might be done before 6 am in preparation for scheduled 6 am site openings.

  13. The applicant contends that FEL start‑up operations should be allowed to the extent of 'preparation and excavation of loading areas'.  Presumably, this would extend to significant FEL activity, pre‑6 am.

  14. However, The Tribunal has already implicitly rejected the prospect of allowing significant noise‑generating activities before 6 am: see Bush Beach at [21] and [70].

  15. Evidence was received that under the previous arrangements, pre‑7 am operations requested by the applicant, and verbally authorised by the City, had included start-up and travel of one to two FELs, prior to 6 am, to positions in readiness for loading.

  16. The applicant submitted that it would not be possible to load 20 trucks in one hour without two FELs operating, while the City responded that permissibility for up to 20 truck movements pre‑7 am was established on the acoustic evidence, and not by establishing the capacity of the operation to fill 20 trucks in one hour: cf, Bush Beach at [41] to [43] and [71] to [75].

  17. The Tribunal agrees with the City.  It would not be appropriate to endorse the applicant's alternative which permits any allowable FEL start‑up and site travel to (and operation at) loading areas between 5.30 am and 6 am.  Importantly, the extensive acoustic evidence and modelling indicated that to do so would generate night‑time noise roughly equivalent to two trucks on site, which would thus occur in advance of, and in addition to, a one hour night‑time period:  see T:103 and 104; 14.05.13.

  18. Such FEL start‑up and loading pre‑7 am would be allowable under the OMP, but only in connection with preparations for normal operating hours.  For these reasons, the City's proposed wording of condition 3(b)(i) should be preferred, subject to the following amendments.

  19. In condition 3(b)(i), after the word 'precludes', the following words should be inserted: 'pre‑6 am'.  Secondly, a new condition should be inserted as condition 3(b)(iA) to read:

    Start‑up work on and by up to two front end loaders preparing for normal operating hours may commence between 6:30 and 7 am.

  20. We note that conditions 3(b)(ii) and 3(b)(iii) are agreed between the parties.

  21. Condition 3(b)(iv), as drafted by the City, prescribes that only one FEL may operate in connection with the loading of trucks after 6 am and before 7 am, 'except in special circumstances approved by the City'.  The applicant wants approval for two FELs unless the City agrees to more than two FELs under the same 'special circumstances' clause.

  22. The applicant submits that it has previously used two FELs prior to 7 am and that two FELs would be necessary to load 20 trucks per hour.  However, importantly, such events had occurred prior to any final expert noise modelling.

  23. In this regard, the City submitted that in the later evidence of the acoustic experts (Mr Reynolds and Mr Lloyd), they had addressed noise generated by one FEL operating in the pit and that the evidence did not establish that two FELs could operate before 7 am in all circumstances and still comply with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).

  24. The Tribunal agrees with the City's view of the expert evidence which leads to support for their position; namely, that approval should be limited to a single FEL operating before 7 am.  Of course, this condition refers to a single FEL loading trucks between 6 am and 7 am, under an approved OMP.

  25. The Tribunal thus broadly agrees with the condition as drafted by the City.

  26. The Tribunal notes that draft conditions 3(b)(v) and 3(b)(vi) are agreed between the parties.

  27. As to condition 3(b)(vii), the Tribunal notes that the applicant's preferred wording has been agreed to by the City.  The condition will therefore read as follows:

    The use of a water truck (street capable) is only permitted prior to 7 am in special circumstances.

  28. The Tribunal notes that draft condition 3(b)(viii) is agreed between the parties.

  29. In conclusion, the Tribunal does not see any case made out for changing condition 3(a) from the form in which it has been drafted by the respondent.  Such changes to the regime of opening hours, as are justified, are reflected in our discussion above concerning the final form of condition 3(b).

Condition 19

  1. Condition 19, as drafted by the City, will prescribe, '[u]nless otherwise agreed by the City', the types and numbers of vehicles 'permitted to be used on site for normal excavation'.  The full text of condition 19 reads as follows:

    Unless otherwise agreed by the City of Mandurah the following vehicles are permitted to be used on site for normal excavation:

    •Two Volvo 150D front end loaders or the equivalent, provided that only one front end loader may operate before in accordance with an approved pre­OMP, except in special circumstances approved by the City (see condition 3(b));

    •Transport trucks approved for road haulage;

    •Water truck.

  2. The applicant would prefer that the condition be deleted altogether or, if not, it should contemplate, consistently with the applicant's views in relation to aspects of condition 3 (see above), three FELs rather than two FELs.  This would extend to vehicles of no specified make or model, with two FELs permitted to operate in accordance with the pre‑7 am OMP, except in special circumstances which would be defined by condition 3.

  3. In addition, the applicant proposes that, besides a water truck, the condition allow an excavator, a bulldozer or other plant that may be required from time to time for normal excavation.  The applicant also proposes that the condition should provide that:

    The front end loaders and other plant must be maintained so that neither engine nor muffler noise produces a tonal noise component at the sensitive premises for the purposes of the [Noise Regulations].

  4. In support of its position on condition 19, Bush Beach submitted that over, in effect, the 20‑year approval period (agreed to by the City), it could be reasonably expected that new, quieter and hybrid loading vehicles will become increasingly available, leading to progressively quieter operations.

  5. Bush Beach also submitted that with a +12 dB influencing factor established (see Bush Beach at [58] and [69]), there was no reason to restrict or define the vehicles on site.

  6. Noise emissions by a bulldozer or an excavator were not specifically addressed in the noise evidence, although there was a common understanding that land clearing would be involved as the pit expanded.  However, as compliance with the Noise Regulations was, in the Tribunal's view, the main rationale behind the City's evident intent to limit site vehicles to no more than the equivalent noise output of the plant and vehicles on which the approval for operations after 7 am was based, the Tribunal could accept the applicant's proposed version of the condition, including (as a significant concession by the applicant) a general tonal noise limitation on all relevant plant and vehicles.

  1. In addition, the Tribunal accepts that we are dealing with normal daytime operating circumstances in an evolving vehicle and equipment technical environment, over a 20‑year period of approval.

  2. Therefore, condition 19, based upon the applicant's draft, should read as follows:

    Unless agreed otherwise by the City of Mandurah the following vehicles are permitted to be used on site for normal excavation:

    •Three FELs

    •Excavator, bulldozer and other plant that may be required from time to time for normal excavation

    •All such plant and vehicles must be maintained so neither engine nor muffler noise produces a tonal noise component at the (nearest) sensitive premises for the purposes of the Noise Regulations.

Condition 22

  1. Condition 22, as drafted by the City, requires, in relation to both condition 3's requirements under the OMP and condition 19's requirements for approval, that the applicant make specific requests for approval 'in reasonable time, but in any event no less than seven working days, prior to the time the operator wishes to act on that approval'.  The full text of condition 22 is as follows:

    Any request by the operator for an approval pursuant to conditions 3 or 19 must be given to the City of Mandurah in reasonable time, but in any event no less than 7 working days, prior to the time the operator wishes to act on that approval.

  2. It appears that in relation to this regime of advance approvals, the applicant seeks an overarching substituted regime of advance 'notification' only.

  3. Mr Slarke, counsel for the respondent, submitted, amongst other matters, that such a system of permitting:

    … pre‑7 am commencement by notification only would have the effect that commencement from 6 am would effectively be 'as of right'.  That [would be] contrary to the City's understanding of the Tribunal's reasons for decision.

  4. With respect, the Tribunal agrees with the respondent's contentions on this point.  The Tribunal also notes that permitting night‑time period operations 'as of right' would have implications for the complaints mechanism established under condition 23.  Condition 23 had been agreed to by the applicant.

  5. This conclusion is sufficient to dispose of the issues related to condition 22.  However, for the sake of completeness, the Tribunal should endorse the City's submission that cases such as Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 (at [86]), establish that it is the Tribunal's expectation that an original decision‑maker will properly and reasonably approach tasks such as this, within the confines of the relevant condition.

  6. Here, no right to operate pre‑7 am has been established, and it is therefore essential that a mechanism by which case‑by‑case approvals may be given (pursuant to conditions 3 and 19) be included in the operating conditions.

Orders

For the reasons given above, the orders of the Tribunal will be as follows:

1.Further to the orders of the Tribunal made on 29 August 2013, the following conditions (set out in the Schedule below) are to be attached to, and are to operate with, the development approval given to the applicant by the City of Mandurah in 2012.

SCHEDULE OF CONDITIONS

Term

1.Subject to this clause, this planning consent shall be for a total period of 20 years consisting of two consecutive 10 year periods from the date of issue.  After the first 10 year period, the City of Mandurah is to review, as soon as practicable, whether there has been compliance with these conditions (including compliance with any associated plan, permit or direction) and if the same is found to be satisfactory, the second 10 year period shall thereupon commence.  If the City of Mandurah does not find compliance with the conditions to be generally satisfactory after the first 10 year period, the approval will cease to operate, but the operator will have a right to seek review of the City of Mandurah's finding.

2.If the development the subject of this approval is not substantially commenced within a period of 24 months from the date of approval, the approval shall lapse and be of no further effect.  Where the approval has lapsed, no further development shall be carried out without the further approval the City of Mandurah having first being sought and obtained.

Hours of operation

3(a)Unless otherwise approved by the City of Mandurah, the hours of operation for the development shall be 7 am to 6 pm Monday to Saturday.  The development shall not operate on Sundays or public holidays.

3(b)The applicant must within 30 days lodge for approval by the City of Mandurah a pre‑7 am operational management plan (pre‑7 am OMP).  The pre‑7 am OMP shall include, without limitation, the following:

(i)The site shall not be opened prior to 6 am.  This precludes pre‑6 am preparatory sitework on and by a front‑end loader (including maintenance, start‑up, and the preparation and excavation of loading areas).

(iA)Start‑up work on and by up to two front‑end loaders preparing for normal operating hours may commence between 6.30 am and 7 am.

(ii)No more than 20 trucks may enter the site prior to 7 am except in special circumstances approved by the City of Mandurah.

(iii)Site induction procedures and instructions are to be provided to all personnel.

(iv)Only one front‑end loader may operate before 7 am, except in special circumstances approved by the City of Mandurah.

(v)Consideration of the location and orientation of the front‑end loader within the pit so as to minimise the receipt of noise at sensitive premises, particularly Lot 40.

(vi)A system for notifying neighbours when pre‑7 am operation is proposed.

(vii)The use of a water truck (street capable) is only permitted prior to 7 am in special circumstances.

(viii)The management of road trucks.

(c)Where approval is given for the development to operate prior to 7 am, the operation must comply with the approved pre‑7 am OMP.

Management Plan

4.Except to the extent that it is inconsistent with any other condition of this approval, the undertaking of the quarry operations on the site is to comply in all respects and at all times with the Excavation‑Rehabilitation Management Plan dated March 2012 (Management Plan) and any subsequent amendments to that Management Plan as may be agreed in writing between the operator and the City of Mandurah.

5.The Management Plan must be reviewed by the operator at least every five years from the date of this approval, in consultation with the City of Mandurah.

Excavation Area

6.The further excavation authorised by this approval is limited to the area shown on the attached plan marked 'A' entitled 'Concept Pit Progress' dated April 2012 (Excavation Area).

7.Within three months from the date of this approval, a survey of the site shall be carried out for the purpose of identifying the outer boundary of the Excavation Area.  The outer boundary of the Excavation Area shall be pegged out within that same three month period and maintained throughout the life of the development.

8.No further sand extraction shall occur within 300 metres of the shared boundary with No 2268 (Lot 40) Old Coast Road.

9.The quarry finished floor level must be at an average of 20 metres AHD (averaged across the excavated area), with a maximum deviation of +15%.

Bunds

10.Within three months following the date of this approval, a three metre high bund shall be installed along the northern edge side of the quarry in accordance with the Noise Assessment Report which forms part of the Management Plan, to the specifications and satisfaction of the City of Mandurah.  This bund must thereafter be maintained for the life of the development.

11.Temporary safety and noise bunds must be established around the eastern, western and southern extremities of the quarry pit area from time to time, and moved as the excavation progresses.

Dust Management

12.The dust management, suppression and mitigation measures described in section 5.4 of the Management Plan must be implemented to ensure that no visible dust generated on the site leaves the site boundaries.

13.When winds or other site conditions are sufficiently strong to negate the effects of the dust management, suppression and mitigation measures contained in section 5.4 of the Management Plan, the quarry operations on the site must cease until conditions improve and compliance can be achieved.

14.In addition to the dust management, suppression and mitigation measures contained within section 5.4 of the Management Plan, if an officer of the City of Mandurah inspects the site and is satisfied that any of the quarry operations on the site are generating an unreasonable amount of dust, or that any of those operations are not compliant with any conditions relating to dust emissions (including non‑compliance with the dust management measures contained in the Management Plan), the City of Mandurah may direct in writing that:

(a)an amended dust management plan is submitted and approved; or

(b)the activities on the site are brought into compliance with this approval,

as the case may be.

In this condition, 'an unreasonable amount of dust generated on site' means visible dust crossing a site boundary and visibly excessive dust on the site.

Vegetation and Rehabilitation

15.The rehabilitation plan described in section 5.13 of the Management Plan shall be amended and provided to the City of Mandurah for approval within three months following the date of this approval, taking into account the following principles:

•rehabilitation is to be staged and progressive;

•surfaces must be maintained in a stable condition to prevent erosion;

•proposed rehabilitation must establish a diverse, effective and permanent cover capable of plant succession and regeneration, or as agreed with the City of Mandurah;

•survival rates are to be specified;

•within 12 months of early closure, areas affected by mining are to be left in an environmentally sound condition and rehabilitated to the agreed landform and criteria within a period of 12 months;

•the final gradients are to be compatible with the intended future land use of the subject site, as defined by the City of Mandurah;

•rehabilitation of a preceding stage must be substantially commenced (the extent of which is to be defined in the plan) before extraction in a subsequent stage commences.

The amended rehabilitation plan approved by the City of Mandurah must thereafter be adhered to for the duration of the development.

Dieback and Weed Management

16.The operator must at all times implement the management practices contained in sections 5.9 and 5.10 of the Management Plan.

17.The acoustic bund required by condition 10 shall be seeded with local species (such as Kunzea Glabrescens, Acacia Rostellifera, Acacia Cyclops, Agonis Flexuosa) by no later than the end of autumn 2014, and thereafter:

(a)the surfaces of the bund must be maintained in a stable condition to prevent erosion; and

(b)the surfaces must remain vegetated so as to maintain an effective and permanent cover capable of plant succession and regeneration.

Fauna

18.Prior to the commencement of any clearing on the site, a fauna relocation plan shall be prepared by the operator and submitted to the City of Mandurah for approval.  The requirements of the approved fauna relocation plan shall thereafter be implemented to the satisfaction of the City of Mandurah.

Noise Management

19.Unless agreed otherwise by the City of Mandurah, the following vehicles are permitted to be used on site for normal excavation:

•three FELs; and

•an excavator, a bulldozer and other plant that may be required from time to time for normal excavation,

and all such plant and vehicles must be maintained so neither engine nor muffler noise produces a tonal noise component at the (nearest) sensitive premises for the purposes of the Environmental Protection (Noise) Regulations 1997 (WA).

20.The development must comply with the noise management measures in section 5.3 of the Management Plan.

21.In addition to any other condition, if an officer of the City of Mandurah inspects the site and is satisfied that any of the quarry operations on the site are generating an unreasonable amount of noise, or that any of those operations are not compliant with any of the conditions relating to noise emissions (including non‑compliance with the noise management measures contained in section 5.3 of the Management Plan), the City of Mandurah may direct in writing that:

(a)an amended noise management plan is submitted and approved; or

(b)the activities on the site are brought into compliance with this approval,

as the case may be.

In this condition, 'an unreasonable amount of noise' means noise which exceeds the levels assigned by the Environmental Protection (Noise) Regulations 1997 (WA).

Notice, ongoing reporting and directions

22.Any request by the operator for an approval pursuant to conditions 3 or 19 must be given to the City of Mandurah in reasonable time, but, in any event, no less than seven working days, prior to the time the operator wishes to act on that approval.

23.The operator of the site must:

(a)maintain a telephone number or telephone numbers upon which complaints concerning the development may be made during operating hours and after hours, and advise neighbouring properties of the telephone number or telephone numbers;

(b)cause to be kept a complaints log in which the following is to be recorded:

(i)the date and time, where relevant, of each complaint made and received;

(ii)the means (telephone, email or mail) by which the complaint was made;

(iii)any personal details of the complainant that were provided or, if no details were provided, a note to that effect;

(iv)the nature of the complaint;

(v)the steps or actions taken in, and the time of, the response of each complaint, including any follow‑up contact with the complainant; and

(vi)if no actions or steps were taken in relation to the complaint/enquiry, the reason(s) why no actions or steps were taken;

(c)respond as soon as possible, and in any event within three working days, to any complaint received;

(d)provide the complaints log to the City of Mandurah upon request; and

(e)cause to be provided to the City of Mandurah, concurrently with any reports being provided to the Department of Environment and Conservation or other government department (Department), all reports prepared and submitted to a Department as required by and forming part of the operator's monitoring and reporting requirements contained in any licence(s) or other approval issued by the Department.

24.By 31 January each year, the operator must provide to the City of Mandurah a report, to the requirements of the City, that includes details of the preceding calendar year's operations, including but not limited to:

(a)the progress of the excavation activities;

(b)the progress of the rehabilitation undertaken and completed;

(c)the measures taken to suppress and minimise dust;

(d)the measures taken to suppress and minimise noise; and

(e)the number and type of community complaints and responses.

25.The City of Mandurah may provide to the operator of the site its comments and any recommendations as to how the operation of the site or the use should be changed in order to address any matter identified by the report required by the preceding condition.  If, in response to any comments and recommendations, it is agreed between the operator and the City of Mandurah that the operation of the site or the manner in which the use is carried out should be modified, the City of Mandurah may direct the operator in writing to do so and the operation of the site or the use shall thereafter be carried out in accordance with any such direction.

Miscellaneous

26.All waste oils and vehicle wash‑down water must be collected and treated, or disposed of off site to an appropriate facility, to the satisfaction of the City of Mandurah.

27.In these conditions, 'operator' means the person carrying out the development the subject of this approval.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, SENIOR MEMBER

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Statutory Material Cited

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Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139
Phil Lukin Pty Ltd And Lowe Pty Ltd and Shire Of Busselton [2006] WASAT 124