CARBONE BROS PTY LTD and SHIRE OF HARVEY

[2021] WASAT 150

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   CARBONE BROS PTY LTD and SHIRE OF HARVEY [2021] WASAT 150

MEMBER:   MS C BARTON, MEMBER

MR R POVEY, MEMBER

MR P CURRY, SENIOR SESSIONAL MEMBER

HEARD:   14, 15 AND 16 JUNE 2021 (FINAL SUBMISSIONS FILED ON 3 SEPTEMBER 2021)

DELIVERED          :   26 NOVEMBER 2021

FILE NO/S:   DR 77 of 2020

BETWEEN:   CARBONE BROS PTY LTD

Applicant

AND

SHIRE OF HARVEY

Respondent

Catchwords:

Town planning - Development application - Exercise of planning discretion - Orderly and proper planning - Extractive industry - State and regionally significant resource - Extraction of basic raw materials - Native vegetation - Tuart woodlands - Condition requiring retention of trees - Whether resource sterilised - Whether sustainable use and development of land - Whether breeding and roosting habitat for Black­Cockatoos - Whether trees part of threatened ecological community - Whether acceptable environmental standards - Connectivity of remnant vegetation - Patch - Approved conservation advice - Mine site rehabilitation - Mine restoration - Biodiversity offsets - Clearing permit application - Preliminary departmental assessment - Clearing principles

Legislation:

Biodiversity Conservation Act 2016 (WA)
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 18A, 181, s 182, s 253, s 528
Environmental Protection Act 1986 (WA), Pt IV, Pt V, s 51E(1), s 51T, Sch 5
Evidence Act 1906 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2), cl 67(2)(b), cl 90(2)
Planning and Development Act 2005 (WA), s 3(1)(c), s 241(1)(a), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 24, s 27, s 27(1), s 29(3), s 31, s 32(1), s 32(2)(a), s 32(2)(b)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	Mr J Skinner
Respondent	:	Mr CA Slarke

Solicitors:

Applicant	:	Thomson Geer - Perth
Respondent	:	McLeods

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

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98

Koltasz Smith & Partners v Western Australian Planning Commission (2000) SR (WA) 266

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59

Robertson and City of Albany [2019] WASAT 3

SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22

SITA Australia Pty Ltd v Greater Dandenong City Council [2007] VCAT 156; (2007) 150 LGERA 266

Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. In October 2019, Carbone Bros Pty Ltd (applicant) applied to the Shire of Harvey (Shire) for development approval under the Shire's District Planning Scheme No 1 (DPS 1) and the Greater Bunbury Region Scheme (GBRS) to carry out an extractive industry over part of Lot 29 Tredrea Place, Myalup (subject land or site) not previously approved for that purpose.[1]  The Council of the Shire approved the application on 24 March 2020 subject to conditions.

   [1] The application under DPS1 was made on 9 October 2019, while the application under the GBRS was made on 15 October 2019.  Exhibit 2, pages 27-29.

2. On 22 April 2020, the applicant commenced proceedings in the Tribunal seeking review of the Shire's approval under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) in respect of conditions 2, 3, 4, 5, 9 and 11.

3. On 29 October 2020, following mediation, the Shire reconsidered its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (development approval).  The development approval is satisfactory to the applicant other than condition 3 and condition 9, which provide:[2]

   [2] Exhibit 1, para 9; Exhibit 9, para 2; Exhibit 2, pages 147-151.

   3. Prior to the issue of an Extractive Industry Licence, the Applicant shall submit an amended proposal for approval by the Shire that addresses:

   a.the proposed extraction area being modified to ensure the retention and protection of the 'Tuart (Eucalyptus gomphocephala) Woodlands and Forests of the Swan Coastal Plain Ecological Community', which includes the six Tuarts initially proposed to be cleared, with a buffer of at least 30m from the outer edge of the canopies; and

   b.updated proposal details including:

   i.total area to be extracted;

   ii.total volume of limestone to be extracted; and

   iii.staging and extraction timeframe.

   …

   9.Prior to the issue of an Extractive Industry Licence, a suitable demarcation barrier shall be erected 30m from the outer edge of the canopies of the Tuart (Eucalyptus gomphocephala) Woodlands and Forests of the Swan Coastal Plain Ecological Community as shown on the approved plan, to the satisfaction of the Shire.

4. The applicant is seeking orders from the Tribunal varying the development approval by deleting condition 3.  Should the application for review be allowed, the applicant accepts that condition 9 could be accommodated in respect of the remaining Tuart woodland by an amendment to the approved plan.[3]

   [3] Applicant's Statement of Issues Facts and Contentions (SIFC), (Exhibit 9), para 15.

5. For the reasons set out in this decision, the Tribunal finds that the application, the subject of review, should be dismissed.  The Tribunal will affirm the Shire's decision made on 29 October 2020.

The proposal

1. The applicant proposes to carry out an extractive industry (limestone extraction) over a part of the subject land not previously approved for that purpose.

2. The proposal involves:[4] 

   [4] See Extractive Industries Licence Application and Environmental Management Plan, Lot 29 Tredrea Place, Myalup, prepared by Lundstom Environmental Consultants Pty Ltd, October 2019, p. 6.

   a)the extraction of limestone from a new 8.3 hectare area of the subject land, together with limestone from the batter created by previous limestone extraction;

   b)the removal of a total estimated volume of 520,452.93 cubic metres of limestone (including from the batter);

   c)the extraction of limestone in four equal stages of approximately 2.1 hectares as shown on the plan of the proposed operations in Annexure A to this decision.  The first two stages will take place over a period of 10 years;

   d)approval for the extraction of limestone from stages 1 and 2 only, plus extraction from the existing batter;

   e)approval to clear six Tuart trees located in the future extraction area, identified as stages 3 and 4; and

   f)progressive rehabilitation of the subject land to native vegetation and pasture.

Subject land and the locality

1. The subject land:

   a)has an area of approximately 40 hectares;

   b)contains an area of approximately 9.2 hectares from which limestone has been extracted over a period of approximately 25 years;

   c)contains a multiple use wetland in the western portion of the site;

   d)contains six Eucalyptus gomphocephala trees (Tuart trees) which the applicant seeks approval to remove to facilitate future limestone extraction (in stages 3 and 4);

   e)has native vegetation in the northern part of the site, which includes Tuart woodland, along with some Agonis flexuosa (Peppermint), Eucalyptus marginata (Jarrah) and Corymbia calophylla (Marri).  The Tuart woodland, to the north-east of the Tuart trees, forms a 'patch' of the Tuart Threatened Ecological Community (Tuart TEC).  As the total area of the 'patch' is greater than 5 hectares, it is part of the nationally protected ecological community;[5]

   f)is otherwise cleared of vegetation, save for remnant vegetation along the western boundary with the multiple use wetland and the Tuart TEC and other remnant vegetation in the northern part of the subject land.

   g)is zoned 'General Farming' pursuant to DPS 1;

   h)is within a Place of Landscape Value designated by DPS 1;

   i)is zoned 'Rural' pursuant to the GBRS;

   j)is identified in the GBRS Strategic Minerals and Basic Raw Materials Resource Policy (SMBRM Policy) as being within an area of Significant Geological Supplies for Limestone; and

   k)is adjacent to existing and approved sand extraction activities and operations on land to the north, south and east.

   [5] An 'ecological community' is the extent in nature of an assemblage of native species that inhabits a particular area: see Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 528.

2. Land uses surrounding the subject land include rural and extraction activities.  To the west of the subject land is a natural dune and foreshore area and the Indian Ocean.  To the southeast of the subject land (on Toranto Road) is the Binningup Desalination Plant.  Several other large Tuart trees are located on the subject land and adjacent to Toranto Road, to the south of the subject land.[6]

Tuart woodlands as a Threatened Ecological Community

[6] Exhibit 19 – bundle of photographs, pages 2-3.

1. The Tuart woodlands and forests of the Swan Coastal Plain ecological community has been listed as a threatened ecological community in the category 'critically endangered' under s 181 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), (EPBC Act).[7]  An ecological community is eligible to be included in the critically endangered category at a particular time if, at that time, it is facing an extremely high risk of extinction in the wild in the immediate future.[8]

   [7] Exhibit 2, pages 342-345.

   [8] EPBC Act, s 182.

2. The Federal Minister for the Environment must ensure that an approved conservation advice is in place for each listed threatened ecological community which sets out the grounds on which the community is eligible to be included in the category in which it is listed and the main factors that are the cause of it being so eligible.[9]

   [9] EPBC Act , s 266B.

3. The approved conservation advice for the Tuart woodlands and forests of the Swan Coastal Plain ecological community (Conservation Advice)[10] incorporates recommended conservation actions to stop the decline of or support the recovery of the community.  The highest priority action for protecting the Tuart woodlands and forests of the Swan Coastal Plain ecological community, which includes the Tuart TEC, is to:[11]

   [p]revent further clearance, fragmentation, or detrimental modification of remnants of the ecological community and of surrounding native vegetation, for example, during residential development.  The higher condition patches, and older growth areas are particularly important for retention and management.

   [10] Exhibit 2, pages 154-311.

   [11] Exhibit 2, page 197.

4. The Conservation Advice also provides, among other things:

   a)that the ecological community 'must meet the diagnostic characteristics and at least the minimum condition thresholds for national protection',[12] including:[13]

   [12] Exhibit 2, page 171; Conservation Advice, s 3.1.

   [13] Exhibit 2, pages 173-174; Conservation Advice, s 3.2.1.

   …

   •Other tree species may be present in the canopy or sub­canopy.  They commonly include:  Agonis flexuosa (Peppermint) and Banksia grandis (Bull Banksia) (both in the southern part of the range), Banksia attenuata (Candlestick Banksia), Eucalyptus marginata (Jarrah); and less commonly, Corymbia calophylla (Marri), Banksia menziesii (Firewood Banksia) and Banksia prionotes (Acorn Banksia).

   •An understorey of native plants is typically present, which may include grasses, herbs and shrubs, although this is often modified by disturbance.  Some understorey plant species that are most commonly present are listed in Section 2.3.3[.]

   b)'… that patches of an ecological community can differ in their quality, with some patches having undergone substantial degradation';[14] and

   c)that: [15]

   All patches of 5 ha or greater that meet the key diagnostic characteristics are part of the nationally protected ecological community.  It is not necessary to conduct additional surveys to confirm that they meet biotic condition thresholds (Table 2) and that they are protected.  However more detailed survey may assist in environment impact assessment, planning and monitoring management, or in determining relative biodiversity value between and within different large patches (e.g. to be used in prioritising conservation works etc.).  Patches of this size that meet the key diagnostic characteristics provide important contributions to local biodiversity, habitat features and contribute to ecological connectivity of the ecological community and other surrounding ecological communities.  Larger patches are likely to be more resilient to some kinds of disturbance and native species loss associated with fragmentation.  These characteristics are all important for the long term resilience of the ecological community across its range.

The Tribunal's review jurisdiction

[14] Exhibit 2, page 171; Conservation Advice, s 3.1.

[15] Exhibit 2, page 177; Conservation Advice, s 3.3.

1. By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[16]

   [16] Section 18, SAT Act.

2. Where a condition is the subject of the application for review, as is the case in this proceeding, the Tribunal will not generally embark on a review of the Shire's decision to approve the proposal.[17]  The Tribunal's review of the conditions imposed by the Shire is by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[18]  

   [17] Empire Securities PtyLtd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10]; Koltasz Smith & Partners v Western Australian Planning Commission (2000) SR (WA) 266 at 274.

   [18] Section 27, SAT Act.

3. The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[19] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[20] 

   [19] Section 32(2)(a), SAT Act.

   [20] Section 32(1), SAT Act.

4. The Tribunal is not limited to the material before the Shire as the original decision-maker but may consider new material.[21]  The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[22] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.

Issues for determination

[21] Section 27(1), SAT Act.

[22] Section 32(2)(b), SAT Act.

1. The Shire identified the following issue for determination by the Tribunal (primary issue):

   1)Should condition 3 and condition 9 of the development approval be maintained?

2. The applicant agreed with the primary issue for determination and accepts that if the Tribunal finds that condition 3 should be deleted, condition 9 could be maintained to provide a 30 metre demarcation barrier in respect of the remaining Tuart woodland.[23]

   [23] ts 8, 14 June 2021.

3. With the benefit of the parties' contentions and expert evidence, we have identified the following issues that are relevant to our determination of the primary issue:

   1)What impact would clearing the Tuart trees have on Black-Cockatoo foraging and breeding habitat?

   2)Do the Tuart trees form part of the Tuart TEC?

   3)Would clearing the Tuart trees have a significant impact on the Tuart TEC?

   4)Would clearing the Tuart trees be consistent with the aims and provisions of DPS 1?

   5)Would clearing the Tuart trees be environmentally acceptable having regard to the planning framework for extractive industry?

   6)Would clearing the Tuart Trees be consistent with orderly and proper planning?

The conduct of the hearing and expert evidence

1. Each party filed with the Tribunal and gave to the other party a statement of issues, facts and contentions. On 20 November 2020, the Shire filed a bundle of documents under s 24 of the SAT Act. The Shire filed a supplementary bundle of documents on 13 January 2021.

2. The applicant relied on the evidence of Mr Greg Harewood who has over 30 years' experience working as an environmental scientist, zoologist and geologist.  Mr Harewood was engaged by the applicant to carry out a Black-Cockatoo habitat tree assessment in respect of the Tuart trees and identify likely direct impacts of clearing on the Black­Cockatoo (Habitat assessment report).[24]  Mr Harewood prepared a witness statement dated 15 January 2021.  The Shire relied on the evidence of Dr Michael Bamford who is a principal of Bamford Consulting Ecologists and provides specialist services for environmental impact assessment and monitoring.  Dr Bamford prepared a witness statement dated 15 January 2021 in relation to the conservation significance of the Black-Cockatoo and the potential impact on its foraging and breeding habitat, and its roosting sites, from the removal of the Tuart trees.

   [24] Black-Cockatoo Habitat Tree Assessment - CPS 8618/1 - Lot 29 Tredea Road, Myalup (November 2019).

3. Following expert conferral, Dr Bamford and Mr Harewood prepared a joint witness statement dated 25 January 2021.

4. The applicant also relied on the evidence of Mr Michael Lundstrom who is the director of Lundstrom Environmental Consultants Pty Ltd and has over 24 years' experience as an environmental consultant.  Mr Lundstrom was engaged by the applicant to assess whether the clearing of the Tuart trees would have a significant environmental impact on the Tuart TEC.  Mr Lundstrom's findings are contained in his witness statement dated 18 January 2021.  The Shire engaged Prof Kingsley Dixon to undertake an assessment of the significance of the Tuart TEC and whether the Tuart trees form part of the Tuart TEC.  Prof Dixon currently serves as John Curtin Distinguished Professor in Plant Sciences and Director, ARC Centres for Mine Restoration, at Curtin University.  During his career, Prof Dixon has specialised in the ecology, restoration and conservation biology of Australian native plants and ecosystems.

5. Prof Dixon prepared a witness statement dated 15 January 2021, a supplementary witness statement dated 4 February 2021 and, following expert conferral, a joint witness statement with Mr Lundstrom dated 27 January 2021.  Under cross-examination, Mr Lundstrom acknowledged that he is not a botanist and that he would defer to Prof Dixon's expertise in respect of Tuart trees.[25]  Prof Dixon is a member of the Federal Threatened Species Scientific Committee which was involved in the listing of the Tuart woodland and forests as a threatened ecological community.[26]  For these reasons, to the extent that there are differences of opinion between the experts in relation to the ecological significance of the Tuart trees, we prefer the evidence of Prof Dixon to that of Mr Lundstrom.

   [25] ts 97, 15 June 2021.

   [26] ts 97, 15 June 2021.

6. Mr Stephen Allerding, a town planner and Director of Allerding & Associates, prepared a witness statement dated 18 January 2021, and a supplementary witness statement dated 24 February 2021.  Mr Allerding was retained by the applicant to provide an independent planning assessment of the proposal that is the subject of the review application.  The Shire relied on the evidence of Mr Simon Hall, who holds the position of Director Sustainable Development at the Shire.  Mr Hall, who is a qualified planner, prepared a witness statement dated 18 January 2021 and a supplementary witness statement dated 21 April 2021.

1. The applicant also relied on the evidence of Mr Darren Noble, who is managing director of Noble Consulting Surveyors Pty Ltd and a land surveying consultant.  Mr Noble was engaged by the applicant to determine the volume of limestone material that would be sterilised if the Tuart trees were retained.  Mr Noble prepared a witness statement dated 18 January 2021 and a supplementary witness statement dated 31 May 2021.

2. The proceedings were heard on 14, 15 and 16 June 2021 with the parties and all expert witnesses attending the Tribunal in person.  The Tribunal had the benefit of a site view on 14 June 2021 during which it had the opportunity to observe the six Tuart trees and the Tuart woodland located on the northern boundary of the subject land.

3. On 13 August 2021, the parties filed written submissions in response to an invitation by the Tribunal to comment on the effect of the gazettal on 16 July 2021 of State Planning Policy 2.4 - Planning for Basic Raw Materials (SPP 2.4) on the determination of the issue in the proceedings.  The parties' written submissions in reply were filed on 20 August 2021, with further written submissions filed by the Shire on 24 August 2021 and by the applicant on 3 September 2021.  The Tribunal's decision was reserved from the date of filing of the last submission.

The planning framework

1. The relevant planning framework, which we have considered in determining the application includes the following:

   1)Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations)

   2)GBRS

   3)DPS 1

   4)SMBRM Policy

   5)State Planning Policy 1 - State Planning Framework (SPP 1.0)

   6)State Planning Policy 2 - Environment and Natural Resources Policy (SPP 2.0)

   7)SPP 2.4

   8)State Planning Policy 2.5 - Rural Planning (SPP 2.5)

   9)State Planning Policy 2.4 Planning for Basic Raw Material Guidelines, July 2021 (BRM Guidelines)

   10)Environmental Protection Authority Guidance Statement No 33 - Environmental Guidance for Planning and Development (EPA Guidance Statement No 33)

   11)Greater Bunbury Strategy, 2013

   12)Draft Bunbury-Geographe Sub-regional Strategy, 2020

   Extracts from the planning framework are included in Annexure B to this decision.

The Tribunal's consideration

1. We have been asked to determine whether condition 3 and condition 9 of the development approval should be maintained. In determining the primary issue, we are required to have due regard to the matters set out in cl 67(2) of Sch 2 to the LPS Regulations (Deemed Provisions) including, but not limited to:[27]

   [27] We note that reg 74(2) of Pt 2 of the Planning Regulations Amendment Regulations 2020 (Amendment Regulations), which came into operation on 15 February 2021, amended cl 67 of the Deemed Provisions. However, cl 90(2) of the amended Deemed Provisions provides that amendments to Pt 8 and Pt 9 made by the Amendment Regulations do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made before 15 February 2021, cl 67 of the former Deemed Provisions apply in this case.

   1)the aims and provisions of DPS 1;

   2)the requirements of orderly and proper planning;

   3)any approved State planning policy;[28]

   4)any policy of the Western Australian Planning Commission;

   5)any policy of the State;

   6)the amenity of the locality, including environmental impacts of the development;

   7)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;

   8)the likely effect of the development on the natural environment and any means that are proposed to protect or mitigate impacts on the natural environment; and

   9)any comments or submissions received on the application.

What impact would clearing the Tuart trees have on Black­Cockatoo foraging and breeding habitat?

[28] See also PD Act, s 241(1)(a).

1. Carnaby's Black-Cockatoo (Calyptorhynchus latirostris), Baudin's Black-Cockatoo (Calyptorhynchus baudinii) and the Forest Red-tailed Black-Cockatoo (Calyptorhynchus banksii naso) are listed as threatened species under State[29] and Commonwealth[30] environment legislation (Black­Cockatoos).[31]  The key components to the study of Black­Cockatoos for impact assessment are the foraging value of native (and non-native) vegetation, breeding habitat and the identification of roosting sites.[32]

   [29] Biodiversity Conservation Act 2016 (WA).

   [30] EPBC Act.

   [31] visited 1 November 2021.

   [32] Witness statement of Dr Michael Bamford, dated 15 January 2021, para 7.

2. Mr Harewood is of the opinion that two of the Tuart trees contain hollows that may be a suitable breeding habitat for Black-Cockatoos.[33]   However, Mr Harewood observed that the Tuart trees are not currently in use for breeding by Black-Cockatoos.  In Mr Harewood's opinion, the estimated 236 hectares of Tuart woodland within 2 kilometres of the patch would, by definition, contain numerous Tuart trees of various ages.  On this basis, Mr Harewood concluded that the removal of the Tuart trees would result in no immediate impact to the Black­Cockatoos' breeding habitat.[34] 

   [33] Witness statement of Mr Greg Harewood, dated 15 January 2021, para 9; ts 46, 15 June 2021.

   [34] Joint statement of Mr Greg Harewood and Dr Michael Bamford, dated 25 January 2021, para 11.

3. Dr Bamford concluded that at least two of the Tuart trees have breeding hollows of a suitable size and orientation for Black-Cockatoos.  It is Dr Bamford's opinion that while none of the two hollows had been used by Black-Cockatoos in the last several years it is possible that the hollows may attract the species in the next five to 10 years.[35]  Dr Bamford observed that the number of similar trees with suitable hollows within 2 kilometres of the Tuart trees is unknown.  Consequently, Dr Bamford concluded that a potential exists for significant impact to Black­Cockatoo breeding habitat if the Tuart trees are removed.[36]

   [35] Witness statement of Dr Michael Bamford, dated 15 January 2021, para 21, 23; ts 45, 15 June 2021.

   [36] Joint statement of Mr Greg Harewood and Dr Michael Bamford dated 25 January 2021, para 11.

4. The experts did not dispute that the trees are approximately 30 metres tall and approximately 200 year's old.[37]  Both experts considered the likely age of Tuart trees to form suitable hollows for Black-Cockatoos and agreed that it was in the order of 200 years.[38]  Dr Bamford stated that hollow forming capacity is not limited to the size and age of the trees but also storm damage and other factors.[39]

   [37] ts 52, 15 June 2021.

   [38] ts 50-51, 15 June 2021.

   [39] ts 51, 15 June 2021.

5. The experts agreed that Black-Cockatoos are moderately tolerant of human activity close to their nesting places.[40]  Dr Bamford stated that extraction activities would not prevent the use of the hollows by Black­Cockatoos in the short-term.  Mr Harewood considered that the probability of the hollows being used was very low but he could not say that they would never be used.[41]  Both experts acknowledged that Black Cockatoos would use suitable hollows in Tuart trees that have died.[42]

   [40] ts 76-77, 15 June 2021

   [41] ts 77, 15 June 2021.

   [42] ts 77, 15 June 2021.

6. The experts disagreed on the density of Tuart trees in the Tuart TEC on the subject land to the north of the Tuart trees.  Mr Harewood relied on mapping that was conducted in 2003 that showed 2,842 hectares of Tuart woodland within 10 kilometres of the subject land.[43]  In Mr Harewood's opinion, the Tuart TEC would include canopies of Tuart trees and other large eucalypts which would all have the potential to develop hollows for Black-Cockatoos.[44]  Dr Bamford observed that there is a lack of information on the numbers of similarly large trees within the Tuart TEC.[45]  Mr Harewood and Dr Bamford ultimately agreed that it is not known how many actual trees are present in the Tuart TEC or if any trees in the Tuart TEC currently contain suitable hollows for Black-Cockatoos.[46]

   [43] Joint statement of Mr Greg Harewood and Dr Michael Bamford, dated 25 January 2021, para 9.

   [44] Joint statement of Mr Greg Harewood and Dr Michael Bamford, dated 25 January 2021, para 9.

   [45] Witness statement of Dr Michael Bamford, dated 15 January 2021, para 23.

   [46] Joint statement of Mr Greg Harewood and Dr Michael Bamford, dated 25 January 2021, paras 9 and 10.

7. The Commonwealth Department of Agriculture, Water and the Environment has developed guidance on the assessment of the significance of paddock trees.[47]  Whilst Mr Harewood acknowledged the value of paddock trees in an otherwise cleared landscape, he is of the opinion that the value to fauna would be low compared with an intact stand of Tuart woodland.  In Dr Bamford's opinion, a wide range of fauna may be present in the Tuart trees, including invertebrates, reptiles, bats and other bird species.  Consequently, Dr Bamford considered the Tuart trees would support other fauna and provide the basis for a future fauna movement corridor.[48]

Findings - Black-Cockatoo habitat

[47] Paddock trees and national environmental law, Department of Environment and Energy, Commonwealth of Australia, 2018.

[48] Witness statement of Dr Michael Bamford, dated 15 January 2021, para 25.

1. The experts agreed, and we find, that at least two hollows of those detected in the Tuart trees may be of a suitable size and orientation for Black-Cockatoos to use for nesting.  We further find, based on the evidence of the experts which we accept, that it is possible that any of the three Black-Cockatoo species may locate and use the two hollows in the next five to 10 years.  Consequently, we find that there may be some impact to the breeding habitat of Black-Cockatoos in the short to medium term if the Tuart trees are removed.

2. The experts agreed, and we find, that it is not known if any trees in the northern Tuart woodland currently contain suitable hollows for Black­Cockatoos.  We find, based on the evidence of Dr Bamford which we accept, that due to the size and age of the Tuart Trees, hollows may form in the future which may be a suitable habitat for Black-Cockatoos.  However, based on the evidence before us, we are unable to conclude that the impact to the present breeding of Black­Cockatoos by the removal of the Tuart trees would be significant.

3. We accept the evidence of Dr Bamford, and we find, that notwithstanding a lack of understorey, the Tuart trees do support other native fauna and may provide habitat connectivity in the form of a movement corridor.

Do the Tuart trees form part of the Tuart TEC?

1. The Conservation Advice provides the diagnostic characteristics to assist in identifying a 'patch' of native vegetation as being part of the Tuart TEC.[49]  If a patch is identified and meets the minimum condition thresholds for a Tuart TEC in the Conservation Advice, then it is considered a Matter of National Environmental Significance (MNES) under the EPBC Act.[50] It is an offence under the EPBC Act for a person to take an action[51] that will have or is likely to have a significant impact on a MNES without the approval of the Federal Minister for the Environment.[52]

   [49] Conservation Advice, s 3.2; Exhibit 2, page 173.

   [50] Conservation Advice, s 3.1; Exhibit 2, page 171.

   [51] An action is a project, a development, an undertaking, an activity or a series of activities, or an alteration of any of these things: EPBC Act, s 523.

   [52] In relation to a listed threatened ecological community, see s 18A, EPBC Act.

2. The ecological importance of larger patches, which are 5 hectares or more, is recognised under the Conservation Advice.  There was no dispute, and we find, that the Tuart woodland located to the north of the Tuart trees has an area of approximately 8 hectares.[53]

   [53] Witness statement of Mr Michael Lundstrom, dated 18 January 2021, para 23.4.

3. The Conservation advice provides:[54]

   A patch may include small areas without understory vegetation, such as bare ground, as well as waterbodies or hardscape (e.g. roads, paths, car parks or buildings) that do not significantly alter the overall function of the ecological community.  These small areas so not break up a patch, or divide a patch into multiple patches, as long as there are some parts of the canopy within 60 m of the outer edges of the canopies of adjacent Tuart trees (as per Section 3.2.1, and Figure 3).

   [54] Conservation Advice, s 3.2.2; Exhibit 2, page 174-175.

4. Prof Dixon and Mr Lundstrom agreed, and we find, that the Tuart trees in question form part of a 'patch' as defined in the Conservation Advice because the Tuart Trees are within 60 metres of the outer edges of the canopies of the Tuart woodland to the north.[55]  There was no dispute, and we find, that the patch, comprising the Tuart trees and the Tuart woodland to the north, meets the key diagnostic characteristics in s 3.2.1 of the Conservation Advice and is greater than 5 hectares in area.  Consequently, based on the evidence of Prof Dixon and Mr Lundstrom, which we accept, we find that the Tuart trees form part of the Tuart TEC.[56]

   [55] Joint statement of Mr Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 8.

   [56] Joint statement of Mr Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 14.

5. Prof Dixon and Mr Lundstrom agreed that the issue that remains, from an ecological perspective, is whether the loss of the Tuart trees is of significance and will negatively impact the ecological integrity of the Tuart TEC.[57]  We next consider whether clearing the Tuart trees will have a significant impact on the Tuart TEC.

Would clearing the Tuart trees have a significant impact on the Tuart TEC?

[57] Joint statement of Mr Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 14

1. The Department of Water and Environmental Regulation (DWER) considered the applicant's request for a clearing permit under s 51E(1) of the Environmental Protection Act 1986 (WA) (EP Act) and prepared a preliminary assessment report (DWER assessment report).  The DWER assessment report did not identify any significant issues with respect to the clearing of native vegetation that would prevent the grant of a clearing permit but DWER deferred its decision until the applicant had received approval for the limestone extraction from the Shire.[58]

   [58] Letter from DWER to Mr Mike Lundstrom dated 31 August 2021, enclosing the DWER assessment report.

2. The principles for assessing native vegetation clearing applications are set out in A guide to the assessment of applications to clear native vegetation[59], a DWER policy document based on the ten clearing principles in Sch 5 to the EP Act (Clearing principles). In applying the Clearing principles, the DWER assessment report concluded:[60]

   The proposed clearing may be at variance with principles (a) and (b) and is not likely to be at variance with the remaining clearing principles.

   [59] A guide to the assessment of applications to clear native vegetation, Under Part V Division 2 of the Environmental Protection Act 1986, Department of Environment Regulation, December 2014.

   [60] Exhibit 2, page 124; DWER assessment report, page 3.

3. Principle (a) of the Clearing principles provides that '[n]ative vegetation should not be cleared if it comprises a high level of biological diversity'. Principle (b) of the Clearing principles provides that '[n]ative vegetation should not be cleared if it comprises the whole or a part of, or is necessary for the maintenance of, a significant habitat for fauna'. Interestingly, the DWER assessment report concluded that the Tuart trees were part of the patch of the Tuart TEC[61] but did not refer to any potential variance of the proposed clearing with principle (d) of the Clearing principles (Clearing principle (d)) which provides that '[n]ative vegetation should not be cleared if it comprises the whole or part of, or is necessary for the maintenance of, a threatened ecological community'. We consider that Clearing principle (d) is relevant to our determination because the Tuart trees form part of a threatened ecological community.

   [61] Exhibit 2, page 124; DWER assessment report, page 2.

4. In relation to the presence of the Tuart TEC, the DWER assessment report provides:[62]

   To be considered the TEC, the vegetation patch must meet key diagnostic characteristics, the primary defining feature of which is the presence of at least two living established Tuart trees in the uppermost canopy layer.  The distance between the Tuart trees must be no more than 60 metres between the outer edges of the canopies of the adjacent Tuart trees.  The Tuart trees may occur as single stemmed trees or as a mallee growth form.  The presence of the TEC is also based on the condition of the native vegetation within the patch (Department of the Environment and Energy, 2019).

   The six trees within the application are mature Tuarts that occur within 60 metres of one another and also within 60 metres of the remnant vegetation containing mature Tuart trees on the northern border of the property.  Therefore, the estimated patch of the TEC would incorporate all the trees in the application area and the trees in the vegetation to the north, and would cover an area larger than five hectares.  Five hectare patches or greater, in any condition, are part of the TEC (Department of the Environment and Energy, 2019).

   Given the presence of the TEC, the proposed clearing may be at variance to principle (a).  Whilst the application involves the clearing of a TEC, the removal of the six trees that are a part of a much larger patch will not significantly impact the local occurrence of this TEC or impact on the conservation status of the TEC.  Weed and dieback management practices will aid in mitigating impacts to the remaining occurrence of this TEC.

   [62] Exhibit 2, page 124; DWER assessment report, page 2.

5. The applicant contends that the DWER assessment report demonstrates that the removal of the Tuart trees would not have a significant impact on the Tuart TEC.  The applicant relies on the evidence of Mr Lundstrom in support of this contention.  Mr Lundstrom observed that DWER, which is the state entity charged with the task of balancing ecological considerations with the human demand for resources, has considered the Conservation Advice and made a decision that, on balance, clearing the Tuart trees would not constitute a significant impact on the integrity and perpetuity of the Tuart TEC.[63] 

   [63] Joint statement of Mr Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 22.

6. Similarly, it is Mr Lundstrom's opinion that the proposed clearing of the Tuart trees would not constitute a significant impact on the Tuart TEC.  Mr Lundstrom formed this opinion for several reasons, including that the Tuart trees are isolated from the 8 hectare Tuart woodland to the north, the degraded condition of the vegetation surrounding the Tuart trees, and the absence of any associated middle or understorey species.[64]  Mr Lundstrom also observed that the Tuart trees are highly exposed on the top of a hill[65] and that they could be adversely affected by falling groundwater levels due to climate change and active limestone and sand extraction surrounding them on three sides.[66]  It is Mr Lundstrom's opinion that the clearing of the Tuart trees 'would not cause the extent of the Tuart TEC to fall below the recommended 30 per cent of its pre­European clearing'.[67]

   [64] Witness statement of Mr Michael Lundstrom, dated 18 January 2021, para 23.

   [65] Witness statement of Mr Michael Lundstrom, dated 18 January 2021, para 23.

   [66] Joint statement of Prof Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 15; ts 105, 15 June 2021.

   [67] Witness statement of Mr Michael Lundstrom, dated 18 January 2021, para 34.2.

1. The applicant tendered photographs of other Tuarts on the subject land and adjacent to Taranto Road of a similar size and height to the Tuart trees.[68]  The applicant also observed that the Tuart trees are barely part of the patch because without the canopy of the northern-most tree, the Tuart trees would not form part of the Tuart TEC.[69]

   [68] Exhibit 19, Exhibit 21.

   [69] ts 26, 14 June 2021; ts 205, 16 June 2021.

2. The Shire's position is that removal of the Tuart trees will have a significant impact on the Tuart TEC because of the substantial size and age of the trees, and the potential for hollow creation given their existing age.  The Shire relies on the evidence of Prof Dixon in support of its position.  Prof Dixon is of the opinion that each of the Tuart trees is approximately 30 metres (or more) tall,[70] and, based on a conservative estimate, approximately 200 years' old.[71]  Prof Dixon also estimated, based on an assessment using the national Vegetation Height and Structure dataset,[72] that approximately 1% of the Tuart canopy within 10 kilometres of the subject land is greater than 20 metres.[73]  Mr Lundstrom did not disagree with these figures.[74] 

   [70] Supplementary witness statement of Prof Kingsley Dixon, dated 4 February 2021, para 18.

   [71] Witness statement of Prof Kingsley Dixon, dated 15 January 2021, para 22.

   [72] Developed by Terrestrial Ecosystem Research Network, uses a combination of satellite vegetation properties with satellite radar to calculate the vegetation height class across Australia on a 30-metre resolution:  Supplementary witness statement of Prof Kingsley Dixon, dated 4 February 2021, para 15.

   [73] Supplementary witness statement of Prof Kingsley Dixon, dated 4 February 2021, paras 15 and 17.

   [74] ts 94, 15 June 2021.

3. Consequently, Prof Dixon considered that the attributes of the Tuart trees (size and age) warrant their retention even though there is a higher proportion (greater than 30%) of the Tuart TEC remaining in the Shire.[75]  Prof Dixon stated:[76]

   So the impact on the greater patch is because these are such significant and large trees, their role in the broader patch dynamics because of their unique size and potentially unique ecological function, with hollow bearing, for example, as one case, is - is something that makes them quite unique in that landscape.

   [75] Joint statement of Prof Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 21.

   [76] ts 130, 15 June 2021.

4. When asked if the Tuart trees would be vulnerable to changes in groundwater because of mining activity, Prof Dixon stated:[77]

   I would be surprised given that the mining activity is to the south, which had been in place for a long period of time, haven't manifested in any stag-heading die back on the southern-most trees. In fact, all of the trees show a similar health regime.  Trees of that age are, undoubtedly, tapping much deeper aquifers for their water supply.  They would have a superficial root system which gets the incoming rainfall, but they would have a (indistinct) system much deeper[.]

   [77] ts 86, 15 June 2021.

5. Prof Dixon provided the following evidence in relation to how the absence of a native understorey affects the ecological value of the Tuart trees:[78]

   So this was one of the more difficult parts of the assessment because we - generally, when we're listing threatened ecological communities, there's a level of intactness from subsoil to the top of the canopy.  But it was very clear from deputations that were made to us, both by the state departments groups, such as Birdlife, Worldwide Fund for Nature, and so on and the indigenous community that, in fact, it was the tree canopy that was important.  And, in the final assessment, it was the arboreal element that was the most significant part of the TEC, noting that we had probably less than 5 per cent of all of the tuart TEC with an intact understory remaining. 

   So the arboreal element was the one supporting the - a whole range of wildlife from bats, to threatened possums, to birds, plus invertebrate fauna that was sustained.  So the level to which an understory is a critical and necessary part of tuarts was considered not as important as protecting the arboreal element.

   [78] ts 98-99, 15 June 2021.

6. Prof Dixon raised concerns about cumulative impacts on the Tuart TEC.[79]  By comparing recent aerial photography as at 1 November 2019 with the area of Tuart woodland mapped in 2003, Prof Dixon identified that approximately 71 hectares of Tuart canopy had been lost within 10 kilometres of the subject land in that period.[80]  Mr Lundstrom did not disagree with these figures.[81] 

Findings - impact on Threatened Ecological Community

[79] ts 125, 15 June 2021.

[80] Supplementary witness statement of Prof Kingsley Dixon, dated 4 February 2021, para 10.

[81] ts 94, 15 June 2021.

1. For the reasons that follow, we find that the removal of the Tuart trees is likely to have a significant impact on the Tuart TEC.

2. First, the experts agreed, and we find, that the Tuart trees are of a significant and substantial size and age commensurate with hollow­bearing capacity.[82]  There was no dispute, and we find, that the percentage of the Tuart canopy within 10 kilometres of the subject land that are of an equivalent or greater height than the Tuart trees is a small fraction of 1%.[83]

   [82] Joint statement of Prof Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 9.

   [83] Supplementary witness statement of Prof Kingsley Dixon, dated 4 February 2021, paras 17 and 19; ts 94, 15 June 2021.

3. Second, the experts agreed, and we find, that the Tuart trees are in excellent health and exhibit a stature and conformity indicating little or no disease, predation or limb drop indicative of growing in an unsatisfactory environment or location.[84]

   [84] Joint statement of Prof Kingsley Dixon and Mr Michael Lundstrom, dated 27 January 2021, para 10.

4. Third, there was no dispute, and we find, that two of the Tuart trees possess hollows of likely suitable size and orientation for use by Black­Cockatoos for nesting.  We further find, based on the evidence of Mr Lundstrom and Dr Bamford, which we accept, that Black-Cockatoos would continue to use suitable nesting hollows following the death of the Tuart trees.[85]

   [85] ts 77, 15 June 2021.

5. Fourth, we accept the evidence of Prof Dixon, and we find, that the absence of an understorey does not detract from the ecological value of the Tuart trees as it relates to the Tuart TEC.  Our finding is supported by the Conservation Advice which contemplates that a patch may include small areas without understorey vegetation.[86]

   [86] Conservation Advice, s 3.2.2.  Exhibit 2, page 174.

6. Fifth, we accept the evidence of Prof Dixon, and we find, that the presence of more than 30% Tuart TEC in the Shire is not a reason to allow the clearing of the Tuart trees.  Our finding is supported by EPA Guidance Statement No 33 which provides that the threshold level of 30% is a minimum threshold and should be higher for rare ecological communities.  EPA Guidance Statement No 33 provides, in B1.1.3, the broad principles for biodiversity conservation including the following:

   Maintain biodiversity at sustainable levels

   All natural resources (land, water and biodiversity) must be managed with a view to maintaining native species and ecological communities at sustainable levels within regions.

   The EPA considers it is important that ecological communities are maintained above the threshold of 30% of the original pre-clearing extent of each community.  This is the minimum level and should be higher for many ecological communities, for example, rare and geographically confined communities.

   Ecological communities now at levels below 30% of their original extent in regions should be fully retained.

   Threatened ecological communities and species should be fully protected and regenerated to sustainable levels.

   (emphasis added)

7. Sixth, whilst there was no evidence before us on the effect of climate change or mining on groundwater levels at the subject land, we accept the evidence of Prof Dixon, and we find, that the Tuart trees are unlikely to be impacted from fluctuations in groundwater due to the ability of their roots to access deeper aquifers.[87]

   [87] ts 86, 15 June 2021.

8. Seventh, the DWER assessment report is a matter that is relevant to our consideration and one to which we must have due regard, but it is not determinative.  We find that in preparing the DWER assessment report, DWER relied on photographs of the application area provided by the applicant to determine the condition of the vegetation.[88]  In making our findings on the size, age and health of the Tuart trees we relied on the evidence of experts who had the benefit of visiting the site and were subject to cross­examination under affirmation.  Consequently, we observe that the evidence on which we have based our findings on the condition and significance of the Tuart trees to the Tuart TEC is more reliable than the information available to DWER at the time it prepared the DWER assessment report.  Notwithstanding our finding that clearing of the Tuart trees is likely to have a significant impact on the Tuart TEC, we next consider whether the removal of the trees would be environmentally acceptable having regard to the relevant planning framework.

Would clearing the Tuart trees be consistent with the aims and provisions of DPS 1?

[88] DWER assessment report, page 3; ts 88, 15 June 2021.

1. One of the objectives of DPS 1 is to promote economic development within the Shire and increase local employment opportunities.[89]  DPS 1 also aims to protect and preserve, in the long­term, the more important flora and fauna habitats and other environmentally sensitive areas that are prone to degradation.[90]

   [89] DPS 1, cl 1.6.1(c).

   [90] DPS 1, cl 1.6.1(g).

2. Schedule 1 to DPS 1 lists 'Places of Landscape Value' in the Shire.  Clause 8.1.1 of DPS 1 provides that lands shown as a Place of Landscape Value on the Scheme Maps are considered by the local government to be of scenic or other value and should be retained in their present state, or restored to their original state, or to a state acceptable to the local government.

3. There was no dispute, and we find, that the subject land is a Place of Landscape Value under cl 8.1.1 of DPS 1, requiring the special approval of the Shire under cl 8.1.2 of DPS 1 for the clearing of native vegetation.  We consider that the status of the subject land as a Place of Landscape Value under cl 8.1.1 of DPS 1 is a relevant factor in determining whether the Tuart trees should be cleared.

4. The Shire did not adduce expert evidence on the effect of the removal of the Tuart trees on the natural landscape.  However, under cross­examination, Mr Hall rejected the suggestion that the Tuart trees, located at the highest point on the ridgeline, would result in an unusual landscape once the subject land was rehabilitated for use as an agricultural paddock.

5. In Mr Allerding's opinion, the subject land is not significantly visible from any of the distributor and regional roads nearby because the subject land is separated 360 metres from Taranto Road at its closest point to the south and 900 metres from Forrest Highway to the east.  Therefore, Mr Allerding does not consider the removal of the Tuart trees to have any significant landscape affect overall.

6. We accept the evidence of Mr Allerding, and we find, that the visibility of the Tuart trees from distributor and regional roads is limited and, therefore, the landscape value of the Tuart trees from those roads is also limited.

Would clearing the Tuart trees be environmentally acceptable having regard to the planning framework for extractive industry?

1. SPP 2.0 provides that a ready supply of basic raw materials close to developing areas is required in order to keep down the cost of land development and the price of housing.[91]  SPP 2.0 directs decision-makers to take account of the availability and condition of natural resources based on the best available information.[92]  It also directs decision-makers to avoid development that may result in unacceptable environmental damage and 'identify and protect important and economic mineral resources to enable mineral exploration and mining in accordance with acceptable environmental standards'.[93]

   [91] SPP 2.0, cl 5.7.

   [92] SPP 2.0, cl 5.1(iii)

   [93] SPP 2.0, cl 5.1(i), cl 5.7(i).

2. Facilitating the extraction of basic raw materials in an environmentally acceptable manner is one of the objectives of the SMBRM Policy.  The SMBRM Policy aims to 'encourage the mining of strategic resources in accordance with acceptable environmental standards'.[94]

   [94] SMBRM Policy, cl 4.3.

3. Clause 5.9 of SPP 2.5 and cl 1.5 of the SMBRM Policy also recognise the need to undertake the extraction of strategic resources in a manner that is environmentally acceptable.  They provide:

   Identification of strategic resources does not presume that extraction would be environmentally acceptable or that subsequent approval for extraction would be guaranteed.  Nor does it remove the requirement of local authorities or proponents to meet their environmental obligations to identify those environmental constraints that may determine the extent and/or manner in which a proposal may be implemented.

4. Clause 5.9(i) of SPP 2.5 and cl 5.11 of the SMBRM Policy also provide:

   [P]lanning decision-makers are to give due regard to advice from environmental agencies and consider potential impacts on fragmentation and connectivity of remnant vegetation.

5. The applicant contends that the planning framework expressly contemplates the extraction of basic raw materials where environmental degradation is avoided or minimised and can be conducted in accordance with acceptable environmental standards.[95]  In support of this contention, the applicant relies on the evidence of Mr Allerding and Mr Noble.

   [95] Applicant's SIFC, para 14(g).  See, for example, SPP 2.0, cl 5.7(i); SMBRM Policy, cl 4.3.

6. In Mr Allerding's opinion, the removal of the Tuart trees is consistent with the designation of the subject land as a state and regionally significant resource under the SMBRM Policy.[96]  Mr Allerding acknowledged that extractive industries are required to conduct operations in an environmentally acceptable manner.[97]  However, Mr Allerding formed the opinion that the removal of the Tuart trees is environmentally acceptable because the vegetation condition of the application area was found by DWER to be degraded to completely degraded, the DWER assessment report had not identified any significant issues in respect to the clearing of the Tuart trees, and Mr Harewood found a lack of suitable hollows for Black-Cockatoos.[98]

   [96] Witness statement of Mr Stephen Allerding, dated 18 January 2021, para 70.

   [97] Witness statement of Mr Stephen Allerding, dated 18 January 2021, para 61. See SMBRM Policy, cl 1.5; SPP 2.5, cl 5.9.

   [98] Witness statement of Mr Stephen Allerding, dated 18 January 2021, para 70.

7. If the Tuart trees and associated batters and buffers[99] are retained, Mr Noble calculated that the volume of limestone material available for extraction from the four stages is a total of 256,125.22m³.[100]  However, if the Tuart trees and associated batters and buffers are not retained, the limestone material available for extraction from the four stages is 520,452.93m³.[101]  Consequently, Mr Noble determined that 50.7% of the extractable limestone material from the four stages would be sterilised if the Tuart trees were retained in stages 3 and 4.[102]  Mr Noble was unable to determine the actual volume of limestone resource that would be sterilised because it was outside his area of expertise.[103]

   [99] Excluding the batter of 1:6 on the western edge of the proposed stage 1 extraction area.

   [100] Supplementary witness statement of Mr Darren Noble, dated 31 May 2021, para 7.

   [101] Supplementary witness statement of Mr Darren Noble, dated 31 May 2021, para 8.

   [102] Supplementary witness statement of Mr Darren Noble, dated 31 May 2021, para 9.

   [103] ts 35, 14 June 2021.

8. Based on the Draft Sub-Regional Strategy, Mr Allerding observed that demand for basic raw materials (BRM) in the Perth and Peel regions is expected to remain high.[104]  Because the subject land is substantially cleared and represents an existing limestone resource operation, Mr Allerding considered it a balanced and appropriate response to allow the extraction of limestone in this instance, particularly as access to resources in the Perth and Peel regions is likely to diminish.[105]

   [104] See Draft Bunbury-Geographe Sub-Regional Strategy, November 2020, cl 17.6.

   [105] Supplementary witness statement of Mr Stephen Allerding, dated 24 February 2021, para 9, 16-18.

9. SPP 2.4 was gazetted on 16 July 2021 and applies throughout the State to development proposals that are over or adjacent to, sites identified to contain BRM resources.  Clause 4 of SPP 2.4 provides that SPP 2.4 should be read in conjunction with the BRM Guidelines.  Clause 4 also provides that:

   State Planning Policy 2.5 Rural Planning (SPP 2.5) addresses BRM matters on rural land.  Until such time as SPP 2.5 is reviewed, where there is a conflict between SPP 2.5 and this policy in relation to BRM matters, this policy prevails to the extent of any inconsistency.

10. The applicant contends that by operation of cl 4 of SPP 2.4, SPP 2.4 prevails and, therefore, supersedes SPP 2.5.  The applicant further contends that the BRM Guidelines emphasise the primary role of specialist environmental decision-making agencies, in particular DWER, in relation to the clearing of native vegetation.[106] It is the applicant's position that there is a specific and discrete statutory regime set out in Part V Division 2 of the EP Act for the determination of applications for the clearing of native vegetation and, therefore, it is not the role of the Tribunal to undertake a de facto review of the DWER assessment report.[107]

    [106] In support of its contention, the applicant referred to State Planning Policy 2.4 Planning for Basic Raw Material Guidelines, July 2021, ss 2.3, 3.1, 4, 4.4, 4.4.3, 5.2, and 5.4.

    [107] Applicant's submissions on effect of State Planning Policy 2.4 – Planning for Basic Raw Materials dated 13 August 2021, para 13.

11. The Shire contends that the planning framework does not prioritise the extraction of basic raw materials over environmental considerations.[108]  The Shire further contends that the Tuart TEC is an area of high conservation significance for the purposes of EPA Guidance Statement No 33.  It is the Shire's position that clearing the Tuart trees would be inconsistent with the broad principles in B1.1.3 of EPA Guidance Statement No 33 for biodiversity conservation and the protection of native vegetation.[109]  The Shire relied on the evidence of Mr Hall in support of these contentions.  Having regard to the planning framework in SPP 1, SPP 2.0, SPP 2.5 and EPA Guidance Statement No 33, it is Mr Hall's opinion that the Tuart trees have a level of importance or significance which justifies their retention.[110]

    [108] Respondent's SIFC, para 41.

    [109] Respondent's SIFC, para 40(f).

    [110] Witness statement of Mr Simon Hall, dated 18 January 2021, para 30, 32.

12. It is the Shire's position that SPP 2.4 applies throughout the State and is likely to apply to the subject land.[111]  The Shire contends that SPP 2.5 continues to apply under cl 4 of SPP 2.4 because it has not been reviewed.  The Shire does not perceive a conflict between SPP 2.4 and SPP 2.5 or the GBRS Policy.  Consequently, the Shire says that SPP 2.4 and the BRM Guidelines do not materially alter the policy position with respect to the extraction of basic raw materials in cases where the proposed extraction raises environmental concerns, such as the removal of trees forming part of a threatened ecological community.[112]

    [111] Respondent's submission in relation to State Planning Policy 2.4 dated 13 August 2021, paras 2, 7.

    [112] Respondent's submission in relation to State Planning Policy 2.4 dated 13 August 2021, paras 6.

1. The Shire contends that there was no evidence before the Tribunal that the reduced supply of limestone from the subject land would have market implications because it is a small percentage of the estimated supply of limestone in the region.[113]  In support of its contention, the Shire relied on the evidence of Mr Hall.  Mr Hall concluded that the relationship between future supply and demand under the Draft Sub­Regional Strategy is not known and that further study is required. [114]Also, in his opinion, there is nothing in the draft Strategy that prioritises the extraction of basic raw materials over environmental considerations.[115]

Findings – environmental acceptability

[113] ts 180, 16 June 2021.

[114] Witness statement of Mr Simon Hall, dated 18 January 2021, para 14.

[115] Witness statement of Mr Simon Hall, dated 18 January 2021, para 15.

1. There was no dispute, and we find, that under the SMBRM Policy and associated planning framework, the extraction of basic raw materials is capable of approval when it is conducted in accordance with acceptable environmental standards or in an environmentally acceptable manner.[116] 

   [116] Witness statement of Mr Stephen Allerding, dated 18 January 2021, para 61; Witness statement of Mr Simon Hall, dated 18 January 2018, para 31; ts 161, 15 June 2021.

2. For the reasons that follow, we find that SPP 2.4 and the BRM Guidelines do not alter the policy position with respect to the extraction of basic raw materials where the proposed extraction raises matters that go to the environmental acceptability of the proposal.  First, we find that under cl 4 of SPP 2.4, SPP 2.5 continues to apply to the extent of any inconsistency with SPP 2.4.  Second, we find that SPP 2.4 is not inconsistent with SPP 2.5 because the policy intent of SPP 2.4 is to facilitate the responsible extraction and use of the State's BRM resources.  Third, we find that SPP 2.4 and the BRM Guidelines do not alter the express provisions of SPP 2.5, referred to above, which anticipate that environmental constraints will be identified to any proposed extraction and that proposals will be implemented in an environmentally acceptable manner.

3. It is the applicant's position that SPP 2.4 and the BRM Guidelines emphasise the primary role of specialist environmental decision-making agencies in relation to the clearing of native vegetation and that the Tribunal should not undertake a de facto review of the DWER assessment report.[117] The applicant contends that it is not the role of planning authorities to impose conditions that purport to regulate matters otherwise addressed by regulators under other statutory regimes and referred the Tribunal to SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22 at [127]-[128] (SITA) which cites SITA Australia Pty Ltd v Greater Dandenong City Council [2007] VCAT 156; (2007) 150 LGERA 266 at [24]-[33].

   [117] Applicant’s submission on effect of State Planning Policy 2.4, dated 13 August 2021, para 16-17; ts 200, 16 June 2021.

4. Whilst we acknowledge that the BRM Guidelines refer to the specialist role of DWER in assessing environmental impacts under Part IV of the EP Act and the issuing of clearing permits under Part V, we observe that the role of the Tribunal is to make findings of fact based on the evidence before it. To do otherwise would be abrogating the Tribunal's statutory function to produce the correct and preferable decision in the de novo review of government decision-making. Further, we find that the decision in SITA can be distinguished from the circumstances of this case because the operation of the PD Act under which an approval is required in relation to the clearing of vegetation is not affected by the clearing provisions of the EP Act or the grant of a clearing permit.[118]

   [118] Section 51T, EP Act.

5. We accept the evidence of Mr Noble, and we find, that 50.7% of the extractable limestone material from the four stages would be sterilised if the Tuart trees were retained in stages 3 and 4.  However, the extraction of limestone material in stages 3 and 4 does not form part of the Shire's approval that is the subject of this proceeding and, therefore, we find that the retention of the Tuart trees would not impact on the extraction of limestone material in stages 1 and 2.

6. The applicant contends that all aspects of its proposal to extract basic raw materials on the subject land will be conducted in an environmentally acceptable manner and, therefore, it has met the relevant threshold for environmental performance (through, for example, dust, weed and dieback management plans) without the retention of the Tuart trees.  We recognise that the environmental management practices adopted by the applicant are contemplated by the SMBRM Policy because the Shire has granted approval to the proposal.  However, we do not consider that sound environmental management practices alone can be relied on by the applicant to meet the threshold for environmental acceptability under the SMBRM Policy where the applicant proposes to clear native vegetation to facilitate resource extraction.

7. The applicant is proposing four fenced vegetated islands as part of its rehabilitation program (proposed tree islands).  In respect of the proposed tree islands, Prof Dixon stated:[119]

   We're not comparing apples for apples.  What we have are six aged elements - remnants of a vast forest system removed and then replaced with four vegetated small islands of equivalent size to the dripline of what appears to be the trees.  So you've removed those significant aged elements and, in the current edition of the standards for ecological restoration, we speak about the loss of old growth as something that restoration and rehabilitation can't reinstate.  So it requires another (indistinct) special component of consideration.  We don't believe that offsets are adequate to address something when you've got, collectively, those six trees of 200 years old - 1200 years.

   [119] ts 93, 15 June 2021.

8. We accept the evidence of Prof Dixon, and we find, that the proposed tree islands would not replace the old growth values of the Tuart trees.[120]  Consequently, we find that reliance on tree islands as a form of biodiversity offset is not, in the circumstances of this case, environmentally acceptable because the tree islands would not offset the loss of the significant ecological value of the Tuart trees.  We further find that the Tuart trees may provide habitat connectivity in the form of a movement corridor.

   [120] ts 128, 15 June 2021.

9. Because the Tuart trees satisfy the Conservation Advice criteria of a patch and, therefore, form part of the Tuart TEC, we find that clearing them would be inconsistent with the principles in B1.1.3 of EPA Guidance Statement No 33 relating to biodiversity conservation and at variance with the clearing principle (d) referred to in B1.2.1(ii)(e) and B1.2.1(ii)(f) of EPA Guidance Statement No 33.  Notwithstanding the presence of the Tuart TEC, we accept the evidence of Prof Dixon, and we find, that because of their age and size the Tuart trees have significant ecological value as old growth habitat, including hollow bearing capacity for threatened bird species such as Black-Cockatoos.

10. Because of the significant ecological value of the Tuart trees, we accept the evidence of Mr Hall, and we find, that clearing them would be inconsistent with the SMBRM Policy and associated planning framework, including SPP 2.0 and SPP 2.5.  Consequently, without the imposition of condition 3 and condition 9, we find that the proposed extraction that is the subject of the Shire's approval would not occur in an environmentally acceptable manner.

Would clearing the Tuart Trees be consistent with orderly and proper planning?

1. In considering the application, we are required by cl 67(2)(b) of the Deemed Provisions to have due regard to the requirements of orderly and proper planning.

2. The meaning of the phrase 'orderly and proper planning' was considered by the Western Australia Supreme Court in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall). Pritchard J held at [179]-[180]:

   … The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.

   The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.

   However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.

   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.

3. In Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59 (Mt Lawley) at [47], the Tribunal recognised that '[s]ustainability is now a core element of orderly and proper planning'. The Tribunal in Mt Lawley considered the meaning of the term 'sustainability,' and determined that (at [48]):

   Sustainability requires the integration of the social, economic and environmental consequences of land use and development in order to deliver a better quality of life now and for future generations[.]

4. The applicant contends that the primary aim of planning is to provide for the sustainable use and development of land having regard to, among other things, economic sustainability.[121]  The applicant points to the fact that the retention of the six Tuart trees will significantly reduce the volume of limestone able to be extracted from the subject land as matter that weighs in favour of clearing the Tuart trees.[122]

   [121] Applicant's SIFC, para 14(a).

   [122] Applicant's SIFC, para 14(h),(i).

5. The objective in s 3(1)(c) of the PD Act is to promote the sustainable use and development of land, a principle also referred to in cl 5 of SPP 1.0. The term 'sustainable development', which is not defined in the PD Act, was recently considered by the Tribunal in Robertson and City of Albany [2019] WASAT 3 (Robertson) at [174]-[180]. In Robertson, the Tribunal reaffirmed that sustainable development is a core element of orderly and proper planning and referred to the seminal decision of Preston J of the New South Wales Land and Environment Court in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256 (Telstra).

6. Having regard to the principles of orderly and proper planning, the applicant contends that there must be a planning reason to depart from the DWER preliminary assessment.[123]  The applicant further contends that condition 3 should not be maintained because the clearing of the Tuart trees will promote the environmentally and economically sustainable use and development of the subject land.[124]  It is the applicant's position that the retention of the Tuart trees, and associated batters and buffers, will significantly reduce the volume of limestone able to be extracted from the subject land.[125]  In support of these contentions, the applicant relied on the evidence of Mr Allerding and Mr Noble.

   [123] ts 208, 16 June 2021.

   [124] Applicant's SIFC, para 14(h

   [125] Applicant's SIFC, para 14(l).

7. Based on Mr Noble's calculations referred to in [79] above, 50.7% of the extractable limestone material from the four stages would be sterilised if the Tuart trees were retained in stages 3 and 4.[126]  In light of Mr Noble's calculations, and the close proximity of the subject land to Harvey and Bunbury, it was Mr Allerding's opinion that accessing the identified resources on the subject land will enable the continued supply of limestone in an efficient manner for the anticipated significant growth in the Greater Bunbury Region.[127]  Mr Allerding concluded, therefore, that granting the application without a requirement for the retention of the Tuart trees would be consistent with the sustainable use and development of the subject land under State Planning Policy 1 - State Planning Framework (SPP 1), and the area's designation as a State and regionally significant resource under SMBRM and SPP 2.4.[128]

   [126] Supplementary witness statement of Mr Darren Noble, dated 31 May 2021, para 9.

   [127] Witness statement of Mr Stephen Allerding, dated 18 January 2021, para 76(d).

   [128] ts 143, 15 June 2021; Witness statement of Mr Stephen Allerding, dated 18 January 2021, paras 69-70, 76(d).  The applicant accepts that the provisions of SPP 2.4 in effect at the time of the hearing did not apply to the subject land: Applicant's submissions on effect of State Planning Policy 2.4 – Planning for Basic Raw Materials dated 13 August 2021, para 4.

8. Because of the significant ecological value of the Tuart trees, the Shire contends that the clearing of those trees should be regarded as a form of unsustainable development and, therefore, inconsistent with the purposes of the PD Act and SPP 1, as well as the policy objectives of SPP 2.5 and the policy measures in SPP 2.0.[129]

   [129] Respondent's SIFC, paras 40(i) and (j).

9. In support of its contentions, the Shire relied on the evidence of Mr Hall.  It is Mr Hall's opinion that while the planning framework generally encourages the extraction of basic raw materials from the subject land, that extraction is not necessarily prioritised over environmental or ecological values.[130]  Having regard to SPP 1, SPP 2.0 and Guidance Statement No 33, it is Mr Hall's opinion that the Tuart trees have a level of significance as native vegetation which justifies their retention, and that retaining them is more consistent with the principle of sustainability than removing the trees for the extraction of limestone.[131]  Mr Hall observed that the subject land would not be sterilised by the retention of the Tuart trees and the imposition of the 30 metre buffer.  Mr Hall acknowledged that there would be a reduction in the quantity of limestone that could be removed from the subject land but stages 1 and 2 could continue, as could substantial parts of stages 3 and 4.[132]

   Findings – orderly and proper planning

   [130] Witness statement of Mr Simon Hall, dated 18 January 2018, paras 30-31.

   [131] Witness statement of Mr Simon Hall, dated 18 January 2018, para 32.

   [132] Witness statement of Mr Simon Hall, dated 18 January 2018, para 35.

10. Although we accept that due regard should be afforded to the DWER assessment report, we do not accept that we are bound by DWER's findings on the environmental suitability of the proposed clearing.  We are required to take into account environmental considerations in making our determination because the planning framework directs us to consider whether a proposed extraction of basic raw materials would be environmentally acceptable.

11. We accept the evidence of Mr Hall, and we find, that the Tuart trees from part of a significant patch of remnant vegetation and that retaining the Tuart trees is more consistent with the principle of sustainability than removing the trees for the extraction of limestone.  Balancing the retention of the Tuart trees against the reduced volume of BRM resource to be extracted from the subject land if the Tuart trees were cleared, we find that, due to their significant ecological value, clearing the Tuart trees would not promote the sustainable use and development of the subject land.  Consequently, we find that maintaining condition 3 and condition 9 of the approval is consistent with the requirements of orderly and proper planning as enunciated by the Tribunal in Mt Lawley and by Pritchard J in Marshall.

Conclusion

1. The proposed extraction of limestone from the subject land was granted development approval by the Shire on 29 October 2020.  The approval is subject to condition 3 which requires the retention of the Tuart trees with a 30 m buffer from the outer edge of the canopies.  Condition 9 of the approval requires a 30 metre demarcation barrier to be erected from the outer edge of the canopy of the Tuart TEC.

2. We find that the Tuart trees form part of the Tuart TEC.  Due to their ecological significance, including their age, size and hollow bearing capacity, we find that clearing them would have a significant impact on the Tuart TEC.  Although we are unable to conclude that clearing the Tuart trees would have a significant impact on the present breeding of Black­Cockatoos, due to the size and age of the Tuart trees, suitable nesting hollows may be utilised in the future.

3. The relevant planning framework anticipates that the extraction of basic raw materials will occur in an environmentally acceptable manner.  Because of the significant ecological value of the Tuart trees, we find that clearing them would be environmentally unacceptable and inconsistent with the principles of orderly and proper planning.  Consequently, we find that condition 3 and condition 9 should be maintained on the approval.  Because the Tuart trees form part of the Tuart TEC, we observe that condition 9 requires a suitable demarcation barrier to be erected 30 metres from the outer edge of the canopy of the Tuart trees.

4. Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, we find that the correct and preferable decision is to dismiss the application under s 252(1) of the PD Act. Accordingly, we will affirm the Shire's decision made on 29 October 2020 in respect of development application for Extractive Industry [Ex/002] (Limestone) at Lot 29 Tredrea Place, Myalup.

Orders

The Tribunal orders:

1.The application is dismissed.

2.The respondent's decision made on 29 October 2020 following reconsideration under s 31 of the State Administrative Tribunal Act 2004 (WA) in respect of development application for Extractive Industry [Ex/002] (Limestone) at Lot 29 Tredea Place, Myalup, is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C BARTON, MEMBER

26 NOVEMBER 2021

ANNEXURE A

ANNEXURE B

The Planning Framework

State planning framework

Greater Bunbury Region Scheme

The subject land is zoned 'Rural' under the Greater Bunbury Region Scheme (GBRS).

Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

Clause 67 in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), sets out the matters to which due regard must be had in considering a development application (to the extent the matter is relevant).

State Planning Policy 1 – State Planning Framework

5.       General Principles for Land Use Planning and Development

…

1. The primary aim of planning is to provide for the sustainable use and development of land.

2. The State Planning Strategy identifies the six key principles which further define this primary aim and describe the considerations which influence good decision-making in land use planning and development.  Each principle includes factors representing good and responsible decision-making in land use planning. Planning should take account of and give effect to, these principles and related policies to ensure integrated decision-making throughout government.

The principles of 'Economy' and 'Environment' are identified as relevant:

Economy

Principle:

Facilitate trade, investment, innovation, employment and community betterment.

Planning should contribute to the economic well-being of the State, regions and local communities by supporting economic development through the provision of land, facilitating decisions and resolving land use conflicts.

In particular, planning should provide for economic development by:

i.providing suitable zoned and serviced land for industry, business and other employment and wealth generating activities;

ii.protecting agricultural land resources from inappropriate uses;

iii.avoiding land use conflicts by separating sensitive and incompatible uses from industry and other economic activities with off-site impacts;

iv.promoting local employment opportunities in order to reduce the time and cost of travel to work;

v.providing sites for tourism accommodation and facilities taking account of their special location and servicing needs; and

vi.ensuring that plans and policies are clear and certain, decisions are made in accordance with plans and policies, and decisions are made expeditiously.

Environment

Principle:  

Conserve the State's natural assets through sustainable development.

The protection of environmental assets and the wise use and management of resources are essential to encourage more ecologically sustainable land use and development.  Planning should contribute to a more sustainable future by:

i.promoting the conservation of ecological systems and the biodiversity they support including ecosystems, habitats, species and genetic diversity;

ii.assisting in the conservation and management of natural resources, including air quality, energy, waterways and water quality, land, agriculture and minerals, to support both environmental quality and sustainable development over the long term;

…

iv.adopting a risk-management approach which aims to avoid or minimise environmental degradation and hazards[.]

State Planning Policy 2.0 - Environment and Natural Resources Policy (SPP 2.0)

…

4.OBJECTIVES

The objectives of this policy are:

ßto integrate environment and natural resource management with broader land use planning and decision-making;

ßto protect, conserve and enhance the natural environment; and

ßto promote and assist in the wise and sustainable use and management of natural resources.

5.POLICY MEASURES

The above objectives provide the context for the policy measures which are set out below under the following headings:

ßGeneral Measures

…

ßBiodiversity

…

ßMinerals, Petroleum and Basic Raw Materials

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5.1General Measures

The implementation of planning decisions can have an impact on the environment and other natural resources.  The following policy measures recognise the significance of natural resources, and should be read in conjunction with the more specific statements on aspects of natural resources that follow. Planning strategies, schemes and decision­making should:

(i)Avoid development that may result in unacceptable environmental damage.

(ii)Actively seek opportunities for improved environmental outcomes including support for development which provides for environmental restoration or enhancement.

(iii)Take account of the availability and condition of natural resources, based on best available information at the time.

(iv)Protect significant natural, indigenous and cultural features, including sites and features significant as habitats and for their floral, cultural, built, archaeological, ethnographic, geological, geomorphological, visual or wilderness values.

(v)Take into account the potential for economic, environmental and social (including cultural) effects on natural resources.

(vi)Recognise that certain natural resources, including biological resources, are restricted to particular areas and that these geographical areas or land types may need to be identified accordingly and appropriate provision made to protect the areas for the use of those resources.

…

(x)Support conservation, protection and management of native remnant vegetation where possible, to enhance soil and land quality, water quality, biodiversity, fauna habitat, landscape, amenity values and ecosystem function.

…

5.5Biodiversity

…

Planning strategies, schemes and decision-making should:

…

(ii)Seek to avoid or minimise any adverse impacts, directly or indirectly, on areas of high biodiversity or conservation value as a result of changes in land use or development.

…

5.7Minerals, Petroleum and Basic Raw Material Resources

…

Basic raw materials include sand, clay, hard rock, limestone and gravel together with other construction and road building materials.  A ready supply of basic raw materials close to developing areas is required in order to keep down the cost of land development and the price of housing[.]

Planning strategies, schemes and decision-making should:

…

(i)Identify and protect important and economic mineral resources to enable mineral exploration and mining in accordance with acceptable environmental standards.

(ii)Identify and protect important basic raw material resources and provide for their extraction and use in accordance with Statement of Planning Policy No. 10: Basic Raw Materials.

…

(iv)Have regard to the State Gravel Supply Strategy (1998), the draft Towards a State Lime Strategy (2001) and any other Government adopted basic raw material or mineral strategy, in considering proposals for the extraction of basic raw materials and mineral resources[.]

State Planning Policy 2.4 - Planning for Basic Raw Materials (SPP 2.4)

…     

3.         BASIC RAW MATERIALS IN WESTERN AUSTRALIA

BRM are a finite resource and their efficient use is required to ensure an ongoing supply to support economic development in Western Australia. Essential for the construction of buildings, roads, other infrastructure and agricultural production, for the purposes of this policy BRM are:

…

•          limestone (including metallurgical limestone)

…

3.1        Supply categories for Basic Raw Materials

This policy recognises the following site categories for BRM:

•Significant Geological Supplies (SGS) - are identified as the highest priority extraction areas for BRM. SGS are BRM identified by the Department of Mines, Industry Regulation and Safety (DMIRS) that represent strategic,

long-term supplies of BRM requiring protection.

• Extraction Sites (ES) - comprise all commercial sites from which BRM are extracted, and quarries. These may overlap with SGS areas. ES may include future, proposed, approved and operating commercial extractive industries under the Planning and Development (Local Planning Schemes) Regulations 2015, the Local Government Act 1995, the Mining Act 1978 or a combination of these Acts.

The identification of BRM under these categories does not obligate the landowner to extract these resources, nor that government approvals for extraction is guaranteed.

4.         APPLICATION OF THIS POLICY

SPP 2.4 should be read in conjunction with the Planning for BRM guidelines (the BRM guidelines).  This policy and BRM guidelines apply to the preparation and assessment of planning instruments, including region and local planning schemes; planning strategies, structure plans; subdivision and development proposals in Western Australia where:

(a)        proposals are over, or adjacent to, sites identified to contain BRM resources
(b)        significant volumes of fill may be required

(c)approval is required for extractive industries under the Planning and Development Act 2005

(d)extractive industry proposals are assessed under the Mining Act 1987 and due regard is given to planning instruments by the decision-maker.

This policy is to be considered in conjunction with the interactive geological map GeoVIEW.WA, as well as other relevant legislation and policies as outlined in the associated BRM guidelines.

State Planning Policy 2.5 Rural Planning (SPP 2.5) addresses BRM matters on rural land.  Until such time as SPP 2.5 is reviewed, where there is a conflict between SPP 2.5 and this policy in relation to BRM matters, this policy prevails to the extent of any inconsistency.

…

5.         POLICY OBJECTIVES

The objectives of this policy are to:

(a)ensure BRM and its regional importance is considered at the earliest stages of the planning process;

(b)protect BRM in SGS areas and ES by avoiding encroachment from incompatible land uses;

(c)ensure BRM resources are used efficiently in land use planning and development;

(d)identify BRM extraction opportunities through sequential land use without compromising the final intended land use; and

(e)ensure the extraction of BRM avoids, minimises or mitigates any adverse impacts on the community, water resources and biodiversity values.

6.         POLICY MEASURES

Planning decisions that impact on, or are impacted by, BRM operations should comply with the following measures.

6.1        Higher order strategic planning instruments

Higher order strategic planning documents such as region schemes, regional and sub-regional frameworks, their amendments, plus sub-regional and district structure plans should, where appropriate:

(a)identify SGS areas as the primary sources for BRM and define known exclusion areas;

(b)avoid and/or minimise the potential negative impacts on amenity and the environment arising from an extractive industry, when identifying areas for future growth;

(c)avoid and/or minimise encroachment on identified BRM resources and extractive industry operations when identifying areas for future growth;

(d)identify opportunities for the extraction of BRM from SGS areas followed by sequential urban or industrial development, where appropriate.  There is a presumption against region scheme amendments until it is demonstrated how sequential land use will be achieved where a BRM resource has been identified; and

(e)seek to locate new urban and industrial areas on land where the need for additional imported fill is minimised.

…

6.5 Development approval and management plans

Unless exempt, applications to establish, extend or expand an extractive industry require development approval under an applicable local planning scheme.  Applications for development approval should be supported by a management plan that demonstrates:

…

(c)        identification of the environmental values and those requiring protection;

…

SPP 2.4 - Planning for Basic Raw Materials Guidelines

1     INTRODUCTION

These guidelines should be read in conjunction with State Planning Policy 2.4 Planning for Basic Raw Materials (SPP 2.4).

1.1     Purpose

These guidelines provide support for decision-making authorities, proponents and referral agencies to implement SPP 2.4.  Specifically, they assist in:

1.guiding the appropriate land use planning practices and development approval requirements in relation to Basic Raw Materials (BRM) across Western Australia by specifying requirements to be met during planning and development processes; and

2.ensuring that necessary BRM management measures are incorporated into land development.

…

2.3     Map of Significant Geological Supplies

In order to assist with planning for BRM extraction, the identification of BRM resources has been undertaken by the State Government for the regions of Western Australia where BRM is in high demand. SGS areas have been mapped based on the quality and quantity of BRM and are the highest priority for BRM extraction. Boundaries of SGS are often indicative.

…

Decision-makers should have due regard for BRM mapping. …

…
PART 1 - GUIDANCE FOR PLANNING AUTHORITIES

3     BASIC RAW MATERIALS GUIDANCE FOR PLANNING PROPOSALS

…

3.1     Higher order strategic planning instruments

Higher order strategic planning documents include region schemes and their amendments, regional and subregional frameworks, sub-regional and district structure plans.

Higher order strategic planning instruments should identify SGS areas and minimise the potential for amenity and environmental impacts arising from an extractive industry. …

…

In the Greater Bunbury region, the Greater Bunbury Region Scheme identifies areas of known minerals and basic raw materials, as well as areas constrained for extraction and others designated as strategic resource areas.

…

3.2     Local planning instruments

…

To inform local planning, local governments are encouraged to map approved extraction sites and identified BRM resources to help avoid future land use conflicts.  This will also ensure the protection of SGS areas and protect regional and locally significant areas of biodiversity and environmental value.

…

4     ASSESSMENT OF PROPOSALS FOR EXTRACTIVE INDUSTRIES

Assessment of proposals to establish, extend or expand an extractive industry, as well as managing the potential impacts of the operation, should consider the following:

…

(c)prioritisation of proposals within SGS areas aligned with DMIRS GeoVIEW.WA mapping in Perth and Peel;

(d)if the resource is identified as a SGS area and/or local basic raw material demand;

…

(k)the effect of the proposed extractive industry on any native flora and fauna and general landscape values;

…

(m)       potential impacts on fragmentation and connectivity of remnant vegetation;

…

4.4     Conservation values

BRM extraction proposals with potential environmental impacts should be referred to the Department of Biodiversity, Conservation and Attractions (DBCA) for advice.

…

4.4.3    Native flora and fauna

BRM operations have the potential to disturb native vegetation and fauna, spread weeds and dieback. Pit design should seek to minimise and mitigate detrimental impacts on any native flora and fauna including the fragmentation of remnant vegetation.

Proposals which potentially impact on biodiversity may need the following additional approvals:

•clearing permit under Part V Division 2 of the Environmental Protection Act 1986 from DWER (freehold land) or DMIRS (Crown land);

•authority to impact to threatened flora, fauna and ecological communities under the Biodiversity Conservation Act 2016 from DBCA; and/or

•referral of impacts to Matters of National Environmental Significance under the Environment Protection and Biodiversity Conservation Act 1999 to Department of Agriculture, Water and the Environment (DAWE).

…

PART 2 – GUIDANCE FOR PROPONENTS

…

5.2     Site selection considerations

SGS areas have been identified by DMIRS as the highest priority areas for BRM extraction. BRM extraction within SGS areas is therefore preferred, however extraction can also occur outside SGS areas, subject to approvals and licensing.

…

5.4     Environmental and natural resource considerations

DWER and DBCA are the primary contacts for environmental advice in relation to site selection, protection of environmental assets (wetlands, waterways, native vegetation, threatened ecological communities and DBCA-managed lands) plus the management of water quality impacts including groundwater vertical separation.

It is important to establish what approvals will be required in terms of clearing vegetation, impacts on threatened flora, fauna or ecological communities, industry license or works approval; licence to take water and water resource management issues, including groundwater separation requirements.

Proponents establishing a BRM operation in an area with existing vegetation may require a vegetation clearing permit under the Environmental Protection Act 1986 issued by DMIRS (Crown land) or DWER (freehold land)[.]

State Planning Policy 2.5 – Rural Planning (SPP 2.5)

…        

2      POLICY INTENT

The purpose of this policy is to protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome.

…

4      POLICY OBJECTIVES

The objectives of this policy relevant in this case are:

…

(c)outside of the Perth and Peel planning regions, secure significant basic raw material resources and provide for their extraction;

….

(g)protect and sustainably manage environmental, landscape and water resource assets.

5      POLICY MEASURES

The WAPC seeks to protect and preserve rural land for rural purposes including primary production, basic raw materials, regional facilities, and protection of biodiversity and landscape. Rural land accommodates a diverse range of land uses, primarily associated with primary production.  There are also rural areas with suitable soils, climate, water (rain or irrigation) and access to services such that the land is considered to be high quality agricultural land. The intent of this policy is therefore to protect rural land and encourage a diversity of compatible rural land uses.

….

5.9     Basic raw materials outside the Perth and Peel planning regions

Basic raw materials are essential for the construction of buildings, roads and other infrastructure, and also for the sustainability of agricultural production.

Identification of basic raw material sites does not presume that extraction would be environmentally acceptable or that subsequent approval for extraction would be guaranteed.  Nor does it remove the requirement of local government authorities or proponents to meet their obligations to identify those environmental constraints which may determine the extent and/or manner in which a proposal may be implemented.

WAPC policy for basic raw materials located outside the Perth and Peel planning regions is:

(a)Significant Geological Supplies and their buffers are not to be developed for other purposes until the resource is extracted, or unless development is compatible with the future extraction of the resource;

(b) Significant Geological Supplies and significant basic raw material resources, and an indicative separation distance or buffer, should be identified in subregional and/or local planning strategies;

(c) region and local planning schemes should identify Significant Geological Supplies and significant basic raw material resources, and include provisions for their protection, access and use;

(d) basic raw material resources and sites should be identified in local planning strategies and schemes as required;

(e) region and local planning schemes should not generally prohibit the extraction of basic raw material resources;

(f) sequential land use planning is encouraged whereby extraction and appropriate rehabilitation can take place on a programmed basis in advance of longer-term use and development;

…

(h) where a basic raw material resource is located with native vegetation or significant biodiversity values, extraction of the resource may require referral under Part IV or Part V of the Environmental Protection Act 1986.  Environmental regulation of the proposal may require vegetation retention and/or protection of other environmental assets;

(i) planning decision-makers are to have due regard to advice from environmental agencies and consider potential impacts on fragmentation and connectivity of remnant vegetation; and

…

GBRS Strategic Minerals and Basic Raw Materials Resource Policy 2018

1.     Introduction

1.1 Minerals and basic raw materials are important commodities for the Western Australian economy. Mining is a key economic driver in the State.  It is a major source of employment and has a significant flow-on effect to other sectors of the economy, particularly manufacturing and resource processing.  Basic raw materials are essential products for local construction, road building and agriculture.

…

1.3 This policy also has regard to the principles of State Planning Policy 2.5:  Rural Planning which sets out matters to be considered by the Western Australian Planning Commission (WAPC) and local governments outside of the Perth and Peel planning regions for zoning, subdivision and development applications for extractive industries, and in the vicinity of identified basic raw material resource areas.

…

1.5Identification of strategic resources does not presume that extraction would be environmentally acceptable or that subsequent approval for extraction would be guaranteed.  Nor does it remove the requirement of local authorities or proponents to meet their environmental obligations to identify those environmental constraints that may determine the extent and/or manner in which a proposal may be implemented

4.     Objectives

4.1 To identify land within the GBRS area that contains mineral resources and basic raw materials of State or regional significance.

…

4.3To encourage the mining of strategic resources in accordance with acceptable environmental standards.

…

5.     Policy statement
…

5.10Where a strategic resource is located with native vegetation or significant biodiversity values, extraction of the resource may require referral under Part IV or Part V of the Environmental Protection Act 1986. Environmental regulation of the proposal may require vegetation retention and/or protection of other environmental assets.

5.11Planning decision-makers are to give due regard to advice from environmental agencies and consider potential impacts on fragmentation and connectivity of remnant vegetation.

Draft Bunbury-Geographe sub-regional planning strategy (November 2020)

(Note:  The Draft Bunbury-Geographe sub-regional planning strategy was released by the WAPC in November 2020 and advertised.  Submissions closed on 12 February 2021).

1.2     Purpose

The Western Australian Planning Commission's State Planning Policy 1:  State Planning Framework establishes that sub-regional strategies guide change and provide a basis for cooperative action to be taken by the State and local governments on land use and development.

The primary purpose of this Strategy is to plan for and manage growth in the Bunbury-Geographe subregion.  It does this by:

•establishing a vision to 2050 to guide land use planning, expressing an agreed aspiration for the future of the sub-region, in the context of the State Planning Framework

•      identifying strategic directions and actions required to implement the vision
•      reaffirming the status of Bunbury as the State's second city
•      defining the sub-region's settlement hierarchy

•identifying future land requirements for urban, industrial, commercial and other purposes

•directing the sequencing of future development to inform and support the preparation of amendments to the Greater Bunbury Region Scheme and local planning schemes

•providing a strategic context for local governments in preparing, reviewing and implementing local planning frameworks

•profiling the sub-region's urban settlements, transport networks, economy, environment and utilities/services.

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3.2.4  Target population

The Strategy does not predict an average annual growth rate or estimate a population size at a specific time.  Rather, it recognises the aspiration for Bunbury-Geographe to reach its full potential, which would likely see the sub-region's population grow towards 200,000 over the next 20-30 years.  

The Strategy therefore adopts 200,000 as a target population. …

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17.6   Basic raw materials

Basic raw materials (BRM) include sand, limestone, gravel, clay, gypsum and other construction and road building materials.  The materials are finite and as the supply becomes more problematic, costs will rise, thereby increasing the cost of development including housing.

These materials are required for a number of uses with most relating to the construction industry including buildings, fill, roads and retaining walls. It is important to have access to local sources as this reduces costs and pollution associated with their transport.

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The remaining extraction sites are administered by the various local governments under the Planning and Development Act 2005. In 2012 the then Department of Planning and WAPC prepared a Basic Raw Materials Demand Study for the Bunbury and Busselton Region (the Study), which identified the main BRM deposits and estimated future demand. The Study identifies a number of regionally-significant deposits that need protection from potential land uses that would restrict future extraction of these resources.

Demand for BRM in the Perth and Peel regions is expected to remain high, while access to deposits in those regions is expected to diminish.  This is likely to have the effect of increased competition from Perth and Peel urban developments for access to BRM from the South West region.  This could potentially have a major impact on the future growth in the sub-region, unless alternatives supplies can be found, or alternative building construction methods are embraced, particularly lightweight construction techniques[.]

Local Planning Framework

Shire of Harvey District Planning Scheme No 1 (DPS 1)
Within the General Farming zone of DPS 1, the use class extractive industry is an SA use, meaning that the local government may, at its discretion, permit the use after notice of the application has been given in accordance with cl 64 of the Deemed Provisions.

1.6        SCHEME OBJECTIVES

1.6.1       The objectives of the Scheme are:

(a) to encourage and control the continued orderly development of land within the Shire in a manner that enhances the quality of life of the Shire community;

(b) to ensure that the existing standard of roads water supply, effluent disposal, electricity supply and other community services are sufficient for the additional demands proposed development would create;

(c)to promote economic development and tourism within the Shire and increase local employment opportunities;

(d) to provide opportunities for a wide range of lifestyles providing areas for urban and rural living;

(e) to retain the pre-eminence of agriculture, and restrict development that detracts from the potential of significant agricultural land;

(f) to preserve and enhance places of natural beauty particularly along the coast, the rivers and inlets and the scarp, and to preserve historic buildings and objects of historical and scientific interest; and

(g) to protect and preserve the more important natural flora and fauna habitats (ecosystem, biodiversity and essential ecological processes), and other environmentally sensitive areas that are prone to degradation on the principle that the extent and manner of use of these areas should be kept within their capabilities of being sustained without degradation in the long term.

1.6.2 In considering applications for development approval, subdivision or amendments to this Planning Scheme the local government shall have regard to the above objectives.

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8.1 PLACES OF LANDSCAPE VALUE – DEVELOPMENT REQUIREMENTS

8.1.1 The places and buildings described in Schedule 1 and situated on the lands shown as a Place of Landscape Value on the Scheme Maps are considered by the local government to be of scenic or other value and should be retained in their present state, or restored to their original state, or to a state acceptable to the local government.

Specific policies relating to Places of Landscape Value are outlined in Schedule 2.

8.1.2A person shall not without the special approval of the local government at or on a place of landscape value carry out any development including, but without limiting the generality of the foregoing:

(a)the erection, demolition or alteration of any building or structure (not including farm fencing, wells, bores or troughs and minor drainage works ancillary to the general rural pursuits of the locality);

(b)the removal of trees associated with established buildings;

(c)the erection of advertising signs; and

(d)the clearing of native vegetation

SCHEDULE 2 – POLICIES FOR PLACES OF LANDSCAPE VALUE

Clause 8.2 Applies

2.1     AREA 2 – COASTAL LAKELANDS
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2.1.3In determining areas where development may occur or in considering proposals, the Local government will take account of the following criteria:

(i) areas with a higher capacity for development should be intensively developed and should attract users away from those areas less well equipped to absorb pressure of use;

(ii) areas of particularly high wildlife potential should be as inaccessible as possible to the general public and should not be developed for human use;

(iii) areas surrounding development areas which in an undeveloped form have such high intrinsic landscape value that they will attract use, must be taken into account when designing the development area so that pressure of use does not destroy the character of the surrounding area;

(iv) areas with a low level of soil and or vegetation stability should be avoided;

(v) the Old Coast Road should be seen as a visual corridor and remain a tourist route and the Local government will not permit a roadhouse, within 20km of an existing development of that nature;

(vi) development areas must be of a physical character that new buildings and associated paraphernalia will be camouflaged by natural vegetation or topographic features. Standing timber should be retained whenever possible, so that only those trees directly and inevitably threatened by development may be removed with the consent of the Local government; and

(vii) where roads are needed to service areas of foreshore they should approach at right angles orientated away from the prevailing winds and located along the base of dunes and meet the foreshore at places suitably equipped to absorb the intensified pressure of use. Roads should not run parallel or adjacent to foreshores.

The standard of access road should be commensurate with the activity potential of the area and the ultimate size of the settlement.

Penetration of the countryside by the motor car should be restricted and minimised. Clearly developments have to be serviced, but the main design criteria must be the landscape, and not the engineering ideals of traffic management.