Carey Baptist College Inc and Western Australian Planning Commission
[2014] WASAT 113
•7 MARCH 2014
CAREY BAPTIST COLLEGE INC and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 113
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 113 | |
| 29/08/2014 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:233/2013 | 20, 21, 22 NOVEMBER 2013 AND 16 DECEMBER 2013 | |
| Coram: | MR J JORDAN (MEMBER) | 7/03/14 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Refusal of Western Australian Planning Commission set aside and conditional approval granted for educational establishment applied for | ||
| B | |||
| PDF Version |
| Parties: | CAREY BAPTIST COLLEGE INC WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Development Private school Proposed daycare, kindergarten, preschool and primary school Master plan to develop school to year 12 Rural zone under Metropolitan Region Scheme Rural living zone under local planning scheme Refusal Conditional approval granted by local government under local planning scheme Nicholson Road has multiple functions Other Regional Road under Metropolitan Region Scheme Freight route Regional and local distributor Access road Junction of access road from school with Nicholson Road Planning for bushfire management Natural gas pipeline crosses land Poultry farm on adjoining lot Odour buffer Conservation category wetland buffer required onsite Revegetation requirements Impact on local amenity Use made of neighbouring lots Orderly and proper planning Effluent disposal Application of policy |
Legislation: | City of Armadale Town Planning Scheme No 4, cl 5B.9.2(e) Environmental Protection (Noise) Regulations 1997 (WA) Environmental Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Protection Act 1986 (WA) Metropolitan Region Scheme, s 30(1) Planning and Development Act 2005 (WA), s 252(1), Sch 1(b) |
Case References: | Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarradale [2012] WASAT 212 |
Summary | This matter was concerned with an educational establishment, comprising preschool, kindergarten and primary to year 5. The City of Armadale had issued a conditional approval under its local planning scheme, but was required by an instrument of delegation to refer the matter to the Western Australian Planning Commission for determination under the Metropolitan Region Scheme.,The Commission refused the application because it considered the development to be in conflict with the intent of its policy framework. This was because the lot was in a rural zone and not well serviced with infrastructure and public transport. The Commission considered the use would be in conflict with local amenity and would be adversely affected by odour from a poultry farm. The Commission also was concerned that traffic generated by the use would adversely impact on the regional road, which is also a freight route, that provided access to the lot.,The Tribunal found that the proposed development would be consistent with the character of land use in this rural zoned locality. It also found that the use would be consistent with orderly and proper planning and would preserve the amenity of the locality. The Tribunal allowed the application for review and granted conditional planning approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CAREY BAPTIST COLLEGE INC and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 113 MEMBER : MR J JORDAN (MEMBER) HEARD : 20, 21, 22 NOVEMBER 2013
- AND 16 DECEMBER 2013
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Development Private school Proposed daycare, kindergarten, preschool and primary school Master plan to develop school to year 12 Rural zone under Metropolitan Region Scheme Rural living zone under local planning scheme Refusal Conditional approval granted by local government under local planning scheme Nicholson Road has multiple functions Other Regional Road under Metropolitan Region Scheme Freight route Regional and local distributor Access road Junction of access road from school with Nicholson Road Planning for bushfire management Natural gas pipeline crosses land Poultry farm on adjoining lot Odour buffer Conservation category wetland buffer required onsite Revegetation requirements Impact on local amenity Use made of neighbouring lots Orderly and proper planning Effluent disposal Application of policy
Legislation:
City of Armadale Town Planning Scheme No 4, cl 5B.9.2(e)
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Protection Act 1986 (WA)
Metropolitan Region Scheme, s 30(1)
Planning and Development Act 2005 (WA), s 252(1), Sch 1(b)
Result:
Application for review allowed
Refusal of Western Australian Planning Commission set aside and conditional approval granted for educational establishment applied for
Summary of Tribunal's decision:
This matter was concerned with an educational establishment, comprising preschool, kindergarten and primary to year 5. The City of Armadale had issued a conditional approval under its local planning scheme, but was required by an instrument of delegation to refer the matter to the Western Australian Planning Commission for determination under the Metropolitan Region Scheme.
The Commission refused the application because it considered the development to be in conflict with the intent of its policy framework. This was because the lot was in a rural zone and not well serviced with infrastructure and public transport. The Commission considered the use would be in conflict with local amenity and would be adversely affected by odour from a poultry farm. The Commission also was concerned that traffic generated by the use would adversely impact on the regional road, which is also a freight route, that provided access to the lot.
The Tribunal found that the proposed development would be consistent with the character of land use in this rural zoned locality. It also found that the use would be consistent with orderly and proper planning and would preserve the amenity of the locality. The Tribunal allowed the application for review and granted conditional planning approval.
Category: B
Representation:
Counsel:
Applicant : Mr M Flint with Mr D Kilpatrick
Respondent : Ms C Ide
Solicitors:
Applicant : Flint Moharich
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarradale [2012] WASAT 212
Introduction
1 The Tribunal issued its decision granting conditional planning approval for the proposed development on 7 March 2014. Following are the reasons for that decision.
2 These proceedings involved an application brought by Carey Baptist College Inc (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the Western Australian Planning Commission (Commission or respondent) to refuse an application for planning approval for an educational establishment on Lot 2 (No 540) Nicholson Road, Forrestdale (the site).
Site, locality and the applicant's existing school
3 The site is rectangular in shape with a frontage of 302 metres to Nicholson Road at the eastern end, a depth of 734 metres and an area of 22.17 hectares.
4 There are no buildings on the site, but it does have an access track from Nicholson Road at the centre point of the front boundary. In general terms, the front third of the site is an open grassy area with what was described as 'low lying marshland' and a small area of remnant bush adjacent to the northern boundary. The centre third is banksia and scrub, and toward the rear of the site is bushland of sheoaks and banksia in the northwest corner and sandy grassed areas at the southwest corner.
5 The site is approximately 1.3 kilometres south of the intersection of Nicholson Road and Armadale Road, an eastwest Primary Regional Road under the Metropolitan Region Scheme (MRS). It is one of some eight rural lots on the west side of Nicholson Road bounded by Armadale Road to the north, and parks and recreation reserves to the west and south.
6 These lots are used for:
• plant nurseries;
• agricultural supplies;
• an office used by an environmental consultant;
• residences; and
• a poultry farm.
7 On the eastern side of Nicholson Road, opposite the site, are lots that are used for rural residential purposes, with low intensity grazing of horses, goats, sheep and cattle. These lots back onto the regional reservation around Forrestdale Lake. Lots to the south along both sides of Nicholson Road are used for rural and rural residential purposes.
8 To the north of Armadale Road are the residential suburbs of Piara Waters, which is being created, and Harrisdale. Within Harrisdale, about 6 km from the site, the applicant has an established school with classes from kindergarten to year 12.
9 In considering whether the proposed use might be allowed on the site it was necessary to have regard to the presence of the following constraints:
1) The Dampier to Bunbury Natural Gas Pipeline (DBNG Pipeline) runs diagonally through the northwest corner of the site. The DBNG Pipeline is within a 30 metre wide easement within a 90 metre wide buffer.
2) An existing and operational poultry farm for the production of eggs, which currently accommodates some 67,000 birds on Lot 801, a 300 metre deep lot abutting the southern boundary of the site. The nearest existing shed on the poultry farm is approximately 210 metres from the common boundary of the site. At the date of the hearing the poultry farm had a current planning approval for a new shed to be constructed 150 metres from the common boundary with the site. This planning approval will expire on 7 March 2014 if not substantially commenced by this date. The Tribunal had no evidence before it that development of the shed has commenced.
3) A MRS parks and recreation reservation which includes State forest, the Jandakot Regional Park and Bush Forever Site No 344 abutting the site on its western boundary, and the western 400 metres of the southern boundary.
4) A conservation category wetland within that parks and recreation reserve, abutting the western and the western half of the southern boundary of the site. The requisite 50 metre wide buffer of the conservation category wetland extends into the site.
5) A resource enhancement wetland extending approximately 115 metres into the eastern portion of the site from Nicholson Road and a Multiple Use Wetland located in the western third of the site.
6) Nicholson Road being an 'Other Regional Road' under the MRS and a designated freight route.
Background
10 In February 2012 the applicant applied to the City of Armadale (City) for planning approval for development of 'an educational establishment, stage 1'. After discussions between the applicant, its consultants, neighbours, relevant State bodies and Council officers, the City resolved in March 2013 to grant planning approval subject to 25 conditions.
11 On 5 April 2013, the City referred the development application to the Commission for determination under the MRS in accordance with the requirements of Sch 1(b) of the Instrument of Delegation made under the PD Act. The referral was made on the basis that the City did not accept the recommendation of the following State Government agencies that the application be refused:
• Department of Agriculture and Food (DAF);
• Main Roads Western Australia (Main Roads WA); and
• Department of Planning (DoP), Transport and Movement branch.
12 The respondent also referred the application to relevant State Government agencies and, in addition to the above, the Department of Transport did not support the application because of concerns about school traffic affecting regional traffic and freight movements on Nicholson Road and lack of public transport.
Proposed development
13 The proposed development is an educational establishment set back 200 metres from Nicholson Road, being a private school comprising buildings that would house an early learning centre, childcare, kindergarten, preprimary and primary years one to five for 300 to 400 children, and 25 staff. Associated with this would be 100 parking bays, a drop off and pick up area, a playground and a playing field about the size of a soccer pitch.
14 The development was described by the applicant as 'Stage 1'. The applicant provided a 'Master plan' it had prepared for the development of a school from kindergarten to year 12 on the site. The significance of the Master plan, and how the development relates to it, is discussed further below.
15 The development would be approximately 330 metres from the proposed poultry shed and about 390 metres from existing poultry sheds on neighbouring Lot 801.
Planning framework
16 Under the MRS, south of Armadale Road, the lots both sides of Nicholson Road that are not included in a reserve, are zoned 'Rural' and this includes the site and neighbouring lots. To the north of Armadale Road intersection the MRS zoning is Urban.
17 Under City of Armadale Town Planning Scheme No 4 (TPS 4), the site and the lots to the west of Nicholson Road between Armadale Road and the poultry farm abutting to the south, are zoned 'Rural Living' X. The Zoning Table of TPS 4 provides that there is discretion to consider whether to approve an 'Educational Establishment' and 'Childcare Premises', after advertising, in this zone. The lots opposite the site are zoned 'Rural Living' 4 under TPS 4.
18 In addition to the MRS and TPS 4 the parties referred to the following documents:
• State Planning Policy 1 State Planning Framework (SPP 1)
• State Planning Policy 3 Urban Growth and Settlement (SPP 3)
• State Planning Policy 4.3 Poultry Farms Policy (SPP 4.3)
• Environmental Protection Agency Guidance Statement No 3 Separation distances between industrial and sensitive land uses (Guidance Statement No 3)
• State Planning Policy 5.4 Road and Rail Transport noise and freight consideration in land use planning (SPP 5.4)
• Development Control Policy 5.1 Regional Roads (Vehicular Access) (DC 5.1)
• State Planning Policy 2.9 Water Resources (SPP 2.9)
• Planning for Bushfire Protection Guidelines (Bushfire Protection Guidelines)
• Planning Bulletin 87 - High Pressure Gas Transmission Pipelines in the Perth Metropolitan Area (PB 87)
• Planning Bulletin 64/2009 Acid Sulfate Soils (PB 64)
• Development Control Policy 2.4 School Sites (DC 2.4)
• Liveable Neighbourhoods
Issues and witnesses
19 The respondent identified as issues in this matter the following:
1) whether the proposed development should be approved having regard to:
a) whether it is consistent with the rural zoning under the MRS;
b) orderly and proper planning; and
c) the preservation of the amenity of the locality.
• Mr Craig Shepherd, town planner from DoP;
• Mr Lindsay Broadhurst, traffic expert from Main Roads WA; and
• Mr David Griffiths, an expert in odour analysis.
21 The applicant called the following witnesses:
• Mr Tony Lambert, consultant town planner;
• Mr Ian MacRae, City Planner from the City;
• Mr Darren Levey, consultant traffic expert;
• Mr John Hurley, consultant odour expert;
• Ms Kristen Bennetts, environmental consultant;
• Mr Rohan Carboon, bush fire expert; and
• Mr Paul Oates, the applicant's business manager.
Discussion
Whether the proposed development would be consistent with the rural zoning under the MRS
22 The Tribunal found that the proposed development on this site would be consistent with the rural zoning under the MRS in this locality.
Local rural character:
23 Mr Lambert's evidence included photographs of this section of Nicholson Road. While aerial photographs might reveal that the rear of most of these lots are unused rural land, the Tribunal considers that the streetscape has the character of commercial activity found on rural roads at the edge of urban areas.
A school in a rural zone
24 It was evident from the documents that Armadale Road was, as described by Mr Shepherd, a 'hard edge' to the urban area in the locality. The plans showed 'residential' or 'future residential' to the north of Armadale Road, whereas the lots to the south were within the Rural zone of the MRS. Land uses south of Armadale Road within this rural locality include a mixture of industrial, agricultural and commercial uses. It was common ground between the experts that there were no plans to extend urban south of Armadale Road.
25 It makes sound planning sense to include primary schools and high schools in an Urban zone when the catchment of that zone is tied directly to immediately adjacent suburbs. In that sense, government schools are sited to serve a particular locality.
26 In this matter, however, a private primary school is proposed. Such schools are not regulated by a specific catchment as are government schools. The evidence of Mr Oates was that the school would be open to applications from all prospective students but its main source of students was from families associated with its particular religion. Mr Oates gave evidence that the applicant's Harrisdale School has a student catchment which extends beyond what might be identified as the immediately surrounding suburbs. A significant proportion of the pupils come from neighbouring suburbs and people might well move to the locality to take advantage of the school, however, the catchment for the school is far wider. For the proposed school, the potential catchment was identified by the applicant as the residential areas particularly to the east, southeast and west, in some instances from beyond intervening rural area and regional open space.
27 Mr MacRae expressed the view that the outcome would be to achieve a valued community facility for the residents of the district. In his opinion the school would be relatively benign in its impact on this rural locality compared to the existing uses on the neighbouring lots along the section of Nicholson Road.
28 The Tribunal has concluded that a school on this site would serve the potential student catchment, and while this does not determine that the school should be in a rural locality, it does not follow that to serve the potential catchment the school must be in an Urban zone. It is other issues, addressed below, that determine whether the proposed school being located on the site is acceptable.
29 SPP 1 refers to 'relationship with the local community'. The Tribunal accepts that there would be little relationship with the neighbours. The Tribunal has accepted, however, that the proposed school would be connected with the extended school community. While the Harrisdale School has become connected with its neighbouring residential area, Mr Oates pointed out that this is partly associated with the manner in which certain facilities were funded under a Commonwealth programme. It is not critical, other than for reasons of goodwill, for a private primary school to have that local relationship.
30 The Tribunal has formed the view that the proposed use would be consistent with other uses in this rural zoned locality under the MRS and would not have an adverse impact on the amenities of the locality. The impact on local amenity is discussed in full under issue 3 below.
31 There is no disagreement between the planning experts and that SPP 1 and SPP 3 provide guidance in the form of various principles relating to community and neighbourhood identity and the responsible roll out of infrastructure.
32 Mr Shepard further considered, however, that individual development proposals must be assessed against the objectives of the policies to be consistent with responsible urban growth.
33 Mr Lambert and Mr MacRae were of the view that these were higher order policies that provide objectives and guidelines to manage urban growth and the preparation of strategies, polices and schemes. They were of the view that the policies are not set out in terms that provide for the assessment of an individual development application.
34 The Tribunal has formed the view that, as siting this private school in a rural location can be approved by discretion under the local planning scheme, it is not necessarily at odds with the objectives of SPP 1 and SPP 3.
35 This then leads to an examination of whether there are considerations that might individually or together be sufficient to weigh against allowing the school to be located on this site and then, ultimately, whether allowing the proposed development would be consistent with orderly and proper planning.
Bushfire management
36 Significant in determining whether a development might be allowed in a Rural zone is whether it can be protected from bushfires.
37 Condition 10 of the conditions imposed by the City on its approval of the proposed stage 1 development required:
A fire management plan being prepared, approved and relevant provisions implemented, in accordance with the WAPC's guideline Planning for Bushfire Protection Edition 2, May 2010 (in particular Appendix 3) to the specifications of the City.
38 Mr Carboon's witness statement had attached a copy of a Fire Management Plan dated August 2013 that he had prepared for stage 1. Mr Carboon identified extreme and moderate bushfire hazards on and surrounding the site. Mr Carboon proposed mitigation strategies for a building protection zone that would result in a bushfire attack level, BAL12.5, which is considered to be low. The risk then was predominantly amber attack. Mr Carboon advised that the City approved the Fire Management Plan on 6 August 2013.
39 Mr Carboon's evidence was that the Fire Management Plan for stage 1 complies with the performance criteria in the Bushfire Protection Guidelines and that school buildings would be constructed in accordance with AS 3959 Construction of Buildings in Bushfire Prone Areas. Proposed mitigation strategies were all contained within the site boundary. He commented that any landscaping and revegetation plan would have to have regard to bushfire management.
40 The Fire Management Plan includes advice that scheme water will be available and that hydrant locations can be spaced and to a standard that would meet the requirements of the Department of Fire and Emergency Services (DFES) and the Water Corporation. The site would also include accessways and parking areas designated to accommodate emergency situations and fire appliances.
41 When questioned, Mr Carboon confirmed that the Fire Management Plan for the site was for the protection of the development in the proposed stage 1. If any other stages were applied for and approved an approval condition similar to the City's condition 10 would be required. He said he had not given any detailed consideration to how a fire management plan might be devised for stages beyond stage 1, especially for those buildings adjacent to the conservation category wetland buffer.
42 There was no dispute that a bushfire management plan is required for the site to protect the proposed development. In this respect, the Tribunal has noted that the City imposed a condition to this effect and has endorsed Mr Carboon's Fire Management Plan. The Tribunal considers the City has relevant expertise in regard to bushfire management and so an assessment of the fire management plan by a second decisionmaking body is not necessary. It follows, of course, that should any planning approval conditions for stage 1 affect the assumptions made in the Fire Management Plan then that plan must be adjusted accordingly. The Tribunal would also comment that any revegetation plan must have regard to the requirements for bushfire protection, particularly in relation to the density of planting of specific species relevant to fire management.
Orderly and proper planning
43 The Tribunal found that the proposed development would be consistent with orderly and proper planning. This was because the development was considered to satisfactorily address the planning objectives of the relevant policies, to be consistent with the local rural character, as discussed above, and has been approved by the City under TPS 4.
The Master plan
44 The proposed development was also described as stage 1. The applicant prepared a Master plan that illustrates how it envisages an educational establishment on the site, that provides buildings and facilities together with playing fields and parking for up to about 1,500 children from prekindergarten to year 12. It was the evidence of Mr Oates that the objective was to proceed in stages as demand required and money allowed until the overall development was complete. In respect of the time it might take, the applicant used as an example its Harrisdale School, which extends from kindergarten to year 12, and has been progressing for some 13 years, and still has buildings and facilities to complete. It was also the evidence of Mr Oates that, in any event, the applicant would want to conduct an educational establishment from prekindergarten to the final year of primary school on the site and would commence with the proposed development, notwithstanding that there had been no approvals granted for the Master plan.
45 The respondent was concerned that to allow the development it is necessary that undue significance be given to the Master plan:
46 Mr MacRae said that the City made its decision to approve the stage 1 application with the knowledge of the Master plan, but made its decision only on the basis of the planning merit of the application before it, and was in no way making any decision to endorse, or otherwise, the content of the Master plan.
47 The Tribunal, in making its decision, has had regard to the Master plan but only as an aid to explain why stage 1 is located where it is on the site. The Tribunal did not have before it an application to endorse the Master plan. Indeed, it would not have done so in circumstances where any approval would be purporting to fetter future decisionmakers on whether certain areas of the site could in fact be used as part of the larger educational establishment and whether the particular uses within the Master plan were appropriate for the site specific locations shown. The planning constraints associated with the site, the absence of a comprehensive analysis of all aspects of these constraints relevant to the entire site, and the development shown on the Master plan and the extended time frame associated with the school's aspirations for the site, do not provide a basis for making a decision in this matter other than determining the planning merits of the stage 1 application.
The urban front
48 As mentioned above Mr Shepherd emphasised that Armadale Road was the 'hard edge' to the urban front and there were no plans to extend the Urban zone under the MRS. His concern was that the use was essentially Urban in character, would demand services usually provided in an urban area and could cause urban development to leap frog into the locality. This, it was said, would be inconsistent with SPP 1 and SPP 3.
49 In a broader context, a private primary school is proposed. As discussed above, such schools are not regulated by a specific catchment as are government schools. The Tribunal found that locating a private school would not be inconsistent with the rural zoning under the MRS. The school then would not be establishing a new urban front and, in that sense, it would not be inconsistent with orderly planning.
DBNG pipeline
50 The DBNG pipeline is not directly affected by this application. The parties and the City were certainly aware that the DBNG pipeline might become a consideration if later applications are made for further school development. The DBNG Pipeline Authority refused to endorse or reject this application or any particular form of development such as that shown on the Master plan, until such time as an application to commence development is made which would have a direct impact on the DBNG Pipeline and its buffer.
51 The Tribunal concluded that the presence of the DBNG pipeline can be put to one side at this time, but remains a consideration for any future development application and is a reason why the Master plan cannot be endorsed.
Water and sewerage
52 The respondent pointed out that SPP 1 and SPP 3 included as an objective efficient and sustainable investment in infrastructure; Mr Shepherd argued that extending water and sewerage services from near Armadale Road the 1.3 km to the site past rural zoned lots, would be in conflict with this objective.
53 The Tribunal was satisfied that the applicant could service the site with reticulated water and sewerage. Reticulated water must be provided because it is essential before the proposed use can commence and is part of the Bushfire Management Plan.
54 There is a sewerage pumping station at the corner of Nicholson Road and Armadale Road. The applicant put a case for deferring installation of sewers to connect to the reticulated sewerage system to the north for some three years. Mr Oates explained that the proposed development would in fact proceed in substages.
55 The Tribunal is of the view that this use should ultimately operate with a reticulated sewerage connection. It has been accepted that there would be considerable delay in the school opening if it was required that reticulated sewerage be installed first, because of the work that needs to be done to connect the school to the sewerage system. The Tribunal has accepted that the use could commence operation on septic tanks and leach drains. Within three years it must then be connected to the reticulated sewerage system, and an appropriate condition can be imposed to require this.
56 In respect to the intent of SPP 1, the Tribunal has had regard to the applicant's obligations in respect to the installation of the sewers and once installed, and with potential use by others. The Tribunal considers that the long term maintenance requirements of the sewers would be at an acceptable level.
Public transport and dual use paths
57 Mr Shepherd and Mr Broadhurst expressed concern that there was inadequate public transport to serve a school. This would be, it was said, against the objective of SPP 1 and SPP 3 to reduce reliance on the use of private vehicles. It would also be against the objection in Liveable Neighbourhoods of providing short cycling and pedestrian routes to schools.
58 Mr Oates gave an explanation of the private bus service employed by the school for its Harrisdale campus and how this could be integrated with the use of the proposed school.
59 The Tribunal has found that in respect of public transport, while it makes planning sense for a private school to be served by public transport, in this instance the private bus service which collects pupils from throughout the Harrisdale School catchment, could also collect the pupils for the proposed school. There was also, admittedly anecdotal, evidence that kindergarten and primary school children at the Harrisdale School were predominantly delivered either by the school bus or by parents in vehicles. Such arrangements would be sufficient to serve the primary school applied for on the site.
60 The respondent also expressed concern that it was not proposed that a dual use path be extended to the site for cyclists and pedestrians. The applicant said that it would consider contributions to dual use paths for cyclists at a later date. The Tribunal concluded that, for the proposed primary school use, a dual use path was not critical.
School traffic and Nicholson Road
61 Nicholson Road, south of Armadale Road, is a single carriageway with one lane in each direction. It is an 'Other Regional Road' in the MRS, is a district distributor under the Main Roads WA functional road hierarchy, and is a freight route consistent with SPP 5.4. To note is that Nicholson Road, south of Armadale Road, also acts as an access road for the site and the neighbouring lots along this section of Nicholson Road, and functions as a local distributor for traffic generated by those lots; that is, the section of Nicholson Road performs a number of functions.
62 Main Roads WA recommended refusal of the proposed use to both the City and the Commission. It said Nicholson Road can carry road trains up to 27.5 metres in length as a primary freight route and is a major northsouth traffic route in the south metropolitan area. Mr Broadhurst gave evidence that from 2008 to 2013 the average annual weekday traffic count increased from 7,507 vehicles per day to 10,168 vehicles per day, and the proportion of heavy vehicles in this count rose from 13.1% to 15.5%. Mr Broadhurst said current traffic projections were 35,000 vehicles per day by 2031. He considered that Nicholson Road would be expected to remain an important freight route given the lack of alternative northsouth regional roads.
63 Mr Broadhurst pointed out that schools generally have two main peak periods and little traffic during the majority of the day. In his opinion the installation of a new major road intersection would require a reduction in speed limit which would delay all traffic along Nicholson Road throughout the day simply to accommodate these two peak periods. Mr Broadhurst referred to DC 1.4, DC 2.4 and Liveable Neighbourhoods and said that school sites should be adjacent to local roads on at least two sides, which then connect to higher order district distributor roads via local distributor roads. He was concerned that the access arrangement for the school would lead to future traffic and road safety problems.
64 Both Mr Broadhurst and Mr Levey agreed that if the development were to proceed, the access to the school should be created as a public road at this stage. The applicant said that it would create a road to the eastern edge of the school buildings, leaving capacity for the road to be extended westward, potentially on the neighbour's land. Mr Levey pointed out that this public road would be adjacent to the northern boundary of the site and could ultimately serve as a local distributor for any development to the north. The experts also agreed that the applicant should be responsible for the required road works along Nicholson Road associated with the junction of the access road with Nicholson Road. Again it appeared the applicant understood its obligations in this regard.
65 The respondent said DC 2.4 refers to primary schools being located conveniently in the catchment area they were intended to serve and Liveable Neighbourhoods recommends streets on three sides to disperse local traffic. Mr Levey said this was not necessary for a private school catering to a much wider catchment area. It was Mr Levey's argument that it would be appropriate to achieve the broader objectives of traffic distribution rather than seeking to achieve certain specific policy objectives that do not necessarily relate to the character of the current proposal.
66 The Tribunal accepted that because the proposed school would not be within a residential area and has a wide catchment it was not necessary to provide multiple street frontages to disperse local traffic. Nicholson Road would be able to collect traffic from the much broader catchment of the proposed school providing very good accessibility via Rowley Road and Thomas Road from the south and Armadale Road and Nicholson Road from the north. A pick up and drop off area provided on site in this proposal would remove traffic congestion from the road. In this respect the proposed development would not be in conflict with orderly planning.
67 Mr Broadhurst did not consider it would be an efficient or appropriate use of traffic signals at the intersection of the access road and Nicholson Road because of the disruption to traffic flow. He would prefer a roundabout if there was to be a school at all. Mr Levey said that he considered that ultimately, the traffic signals would not serve as this one use but would potentially serve development on the lots to the north. He said that the applicant would forego the need for traffic signals if the proposed access could operate safely and efficiently without signals. It was common ground that any intersection treatment should be based on sound engineering judgment, both on the design of the intersection and the use of traffic lights.
68 The two traffic experts agreed that there would be a need to reduce the speed limit to 70 kph in the vicinity of the proposed junction. Mr Broadhurst was concerned this would cause difficulty for traffic flow if there were changes in speed limit over various sections of Nicholson Road south of Armadale Road. Mr Levey said that road uses should be able to accommodate any speed changes, particularly where it was clear there was a road junction involved.
69 Mr Broadhurst said the new road was essentially a driveway to the school and did not remove the problems of adding another intersection to Nicholson Road. Mr Levey said that the junction of the school access road with Nicholson Road would be some 500 metres from the nearest intersection of public roads, which is considered acceptable.
70 It was Mr Levey's submission that a well-designed intersection ensured that the integrity and function of Nicholson Road would be maintained and work could be carried out to ensure that the proposed junction would operate at an acceptable level of service consistent with the requirements for a district distributor road.
71 Mr Levey pointed out that DC 5.1 recognises that, for historical reasons, a development would sometimes result in access to regional roads. This was to be managed through shared access arrangements or through the construction of a local distributor or access road. In Mr Levey's opinion, the proposed northern access to the development being created as a public road would achieve this objective. He was of the opinion that as the traffic volumes on Nicholson Road continue to grow, the studies showed that it would become a four lane divided road and the levels of service and safety for the access arrangements to the school would remain acceptable.
72 The Tribunal received the benefit of the evidence from and the close examination and re-examination of the two traffic witnesses. It was apparent that maintaining system flow on freight routes was important, but consistent with the character of freight routes on regional distributors in this locality, the introduction of a controlled intersection on a road that also functioned as a access road and would continue to do so for the foreseeable future, would not result in a reduction in the level of service of an order that would warrant the development being refused. Conditions of approval could ensure that the intersection is designed to accommodate traffic both travelling northsouth on Nicholson Road and gaining access to the school.
73 The City maintains Nicholson Road, even though it is a regional distributor and a freight route. The City received submissions from Main Roads WA and the Department of Transport similar to those received by the respondent. The evidence of Mr MacRae and Mr Levey was that City officers spoke with the applicant's traffic consultants and the two government agencies about how the traffic attracted to the site might be accommodated and the design of the intersection. The City issued its approval to allow the development to proceed.
74 The Tribunal has formed the view that the proposed arrangements for managing school traffic would be consistent with orderly and proper planning.
The proposed development and the preservation of the amenity of the locality
75 This is a particular consideration required under s 30(1) of the MRS. The Tribunal has concluded that the development would be consistent with preserving the amenity of the locality.
Revegetation, landscaping and protection of the wetlands
76 The City's conditions of planning approval required a wetland management plan for the resource enhancement wetland at the eastern end of the site and for a buffer to the conservation category wetland adjacent to the to the south west of the site. The revegetation plan was required to include weed control, revegetation and the management of existing vegetation on the site.
77 In April 2013, Ms Bennetts completed an 'Environmental Summary Report' after consulting with officers of the City, with the then Department of Environment and Conservation (DEC), (now split into the Department of Parks and Wildlife (DPaW) and the Department of Environmental Regulation (DER)), the Federal Department of Sustainability, Environment, Water, Population and Communities (Federal Department of SEWPC).
78 In May 2013, Ms Bennett prepared a revegetation plan, in part to provide further information required by DER so that a decision could be made on a clearing permit application, and also to address conditions of planning approval imposed by the City. The report restated core components of the referral to the Federal Department of SEWPC under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) including providing some 1.7 hectares of vegetation for foraging black cockatoos.
79 Under crossexamination, Ms Bennett clarified that the Master plan overlay in the revegetation plan was an earlier version and not that before the Tribunal. The current version of the Master plan shows playing courts intruding about 15 metres into the 50 metre wide buffer to the conservation category wetland. It was also revealed that the revegetation plan related to the whole of the Master plan, but did not have regard to bushfire management because the Bushfire Management Plan prepared by Mr Carboon related specifically to the protection of only the approved stage 1 development.
80 Ms Bennetts agreed she would have to amend the plan to accommodate the current Master plan layout and any current and future fire management plans. She noted that the Master plan might well be amended further during the 10 year time span proposed for revegetation. To date, the DER had not granted a licence to clear vegetation from the site, and the Federal Department of SEWPC will want to consider any change in the potential use of the site, and any effect on vegetation different from what was previously considered.
81 Ms Bennetts was of the opinion that additional planting elsewhere on the site would offset loss of buffer to accommodate parts of playing fields and courts and the potential requirement for thinning vegetation in the fire management buffer at future stages of development. In respect of the EPBC Act, Ms Bennetts said the overall density of planting on the site would provide a foraging habitat for black cockatoos.
82 The school would be built some 200 metres back from Nicholson Road and the revegetation plan includes planting in the resource enhancement wetland and its buffer along the Nicholson Road frontage.
83 The Tribunal has formed the view that the revegetation plan of May 2013, amended by the requirements for bush fire management and to satisfy black cockatoo foraging requirements, provides an adequate basis for a revegetation plan suitable for the development currently proposed for the site. The Tribunal considers that the impact of the proposal on the amenity of the wetlands can be properly managed and the vegetation of the site will be enhanced by revegetation and landscaping.
84 The City's approval included five conditions that address various aspects of landscape and revegetation. The Tribunal is of the view that no additional conditions concerning landscaping and revegetation need to be imposed on the approval of this development additional to those imposed by the City. It must be said, however, that fresh conditions to achieve the same ends would need to be imposed if approval were ever to be applied for and granted for any of the future stages of the school beyond stage 1.
Visual amenity
85 The Tribunal has formed the view that the appearance of these buildings within the streetscape of Nicholson Road will be no more intrusive and perhaps less so because of setback and, landscaping and revegetation, than the large sheds in the commercial premises to the north and agricultural sheds on some properties, including the poultry farm.
Noise
86 Mr Levey and Mr Broadhurst commented that SPP 5.4 was concerned with the impact of noise from freight routes, such as Nicholson Road, on sensitive uses. The Tribunal is satisfied that the setback of 200 metres to the development would be sufficient to address the intent of SPP 4.5.
87 In respect to impact on the local amenity from noise generated by the use itself, the City's approval requires equipment such as airconditioners and compressors to be positioned to avoid adverse effects on neighbours. The City reminds the applicant that it must comply with the Environmental Protection (Noise) Regulations 1997 (WA). The Tribunal is of the view that a condition requiring a further noise assessment is not warranted.
Odour
88 The City approved the additional poultry shed on Lot 801 adjoining the site to the south. Clause 5B.9.3 of TPS 4 states that:
Before approving any application involving off-site environmental impacts, the City is to have regard to any relevant buffer distances recommended by the Department of Environment.
89 There was no dispute that the TPS 4 Special Control Area Map 1 depicts a 500 metre buffer around the poultry farm located on Lot 801 adjoining to the South. There was no dispute that the City had discretion to vary this distance.
90 The City granted approval for the proposed development on the site in the knowledge of the current and proposed poultry sheds on Lot 801. The evidence before the Tribunal was that the City had a submission from the applicant on the impact on the site from the poultry farm and granted planning approval on the basis that the distance between the poultry sheds on Lot 801 and the proposed development would be acceptable. The City's decision is not under review.
91 The nearest existing shed on the poultry farm is approximately 210 metres from the common boundary with the site. The additional shed that had a valid planning approval at the time of the hearing would be constructed 150 metres from the common boundary. The proposed development would be some 330 metres from the proposed poultry shed and about 390 metres from the existing poultry sheds.
92 SPP 4.3 provides guidance in the consideration of applications for development of poultry farms. Clause 5.1.2 of SPP 4.3 states that:
New poultry sheds will only be permitted in accordance with the following general buffer guidelines;
• 500 metres from any existing or future residential zone;
• 300 metres from the existing or future ruralresidential zone;
• 100 metres from the boundary of the poultry farm.
93 The respondent submitted, and the Tribunal considers properly so, that the policy intends for these buffer distances to also be applicable in the reverse situation to satisfy the SPP 4.3 objective of protecting poultry farms in the face of encroaching development.
94 Guidance Statement No 3 Appendix 1 provides advice on generic separation distances between specific industries and sensitive land uses, which includes schools, to avoid or minimise the potential for land use conflict. Appendix 1 advises that for poultry farming industries a buffer distance of 300 metres to 1,000 metres is required, depending on the size of the farm.
95 Guidance Statement No 3, at cl 4.4.1, states that 'where the separation distance is less than the generic distance, scientific study based on site- and industry specific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts'.
96 Mr Hurley, the odour expert called by the applicant, supported his witness statement with a copy of The Odour Unit (WA) Pty Ltd Odour Impact Assessment Report dated January 2012 prepared for the proposed development.
97 Mr Hurley said that site specific odour data had been collected and 'fed' into the AUSPLUME Version 6 computer dispersion model. In addition to adopting a particular metrological data set which he said included worst case metrological conditions, Mr Hurley said the modelling also included what he initially understood to be the operating hours of the school. At the hearing, it was accepted that there was a need to include up to three evenings per week when students would be at the school and the weeks outside the academic year when staff would still be working. Mr Hurley's further submission was that these additional hours would not alter his conclusions.
98 Mr David Griffiths, the odour expert called by the respondent, firstly submitted that the current farm accommodates 67,000 birds with an approval for a further 10,000 birds and this was far from meeting the definition of a small farm. On that basis alone 'a separation distance of 300 metres or less appears to be an insufficient guarantee of low risk of nuisance odour impacts'. It was the respondent's submission that given the proposed intensity of the daytime population of the educational establishment a buffer to the poultry farm of not less than the 500 metres as required under SPP 4.3, be maintained.
99 Mr Griffiths identified four stages in odour modelling. These were sampling and measurement; modelling, acceptability criteria, and finally nuisance odour impact prediction. It was Mr Griffith's argument that the uncertainties at each stage of the process were sufficient to make the result so uncertain that the minimum 300 metre buffer should not be accepted and a greater buffer is required. Mr Griffiths referred to reports he said supported the submission that significant uncertainties can start at the first stage, with wide confidence intervals associated with for example, dynamic olfactometry and measurements to determine emission rates and flow rates.
100 Mr Griffiths submitted there were then further levels of uncertainty in the modelling calculations because of, as the Tribunal understood it, the particular metrological data set used, algorithms used and then the particular model itself, particularly those commonly used in Australia such as AUSPLUME. The dispersion modelling would also be affected by different sheds on the poultry farm on Lot 801 having non-vertical as well as vertical vents.
101 Mr Hurley used a complete meteorological data set from the Caversham station, which is 30 km from the site. The respondent said Jandakot and Kenwick stations were closer and would be more accurate. The problem which was acknowledged was that the two latter stations could not provide the full set of data required.
102 Mr Griffiths said there was little consensus as to what criteria ought to apply to calculate nuisance odour impact. In this respect he referred to differing percentile compliance levels in, for example, Germany, Queensland and South Australia. In his opinion the question of which percentile concentrations best represent nuisance odour exposure has yet to be resolved and review of policies was ongoing.
103 Mr Griffiths said that because an odour impact assessment is the accumulation of the above steps and there are uncertainties inherent in each step, it was important that conservative assumptions be used. He did not consider that in this matter the applicant's consultant had always used conservative assumptions. He considered there should have included impacts from such matters as changing feed, changing best practice, equipment failure, water ingress which would increase odour from manure, a transient peak, or pulse, in odour or cataclysmic events such as major breakdowns or high mortalities. He was concerned that Mr Oates submission that the school had an agreement on when sheds would be cleaned would not prevent a change from this if it became necessary or there was a change of owner. It was his submission that, depending upon how the inputs from Mr Hurley's analysis were interpreted and applied, a buffer of between 1 km and 2 km could be required to be below the standard odour unit threshold.
104 Mr Griffiths was clearly familiar with the literature on the inherent difficulty with odour modelling, various models that can be used, and the impact differing assumptions can have on results produced. He said that it would be impossible to guarantee, especially over longer time frames, the assumptions used in the modelling. In his opinion because of the proximity of the school to the poultry farm, remedial measures would be very difficult to undertake and should not be placed as a burden on the egg producer.
105 The subsequent Guidance Statement No 3 (2005), refers to the distance being between 300 and 1000 metres depending on size of the poultry shed.
106 Mr Hurley used AUSPLUME Version 6 for modelling. Mr Griffiths argued that other models would be preferred in the circumstance, but the Tribunal accepted that it was open to Mr Hurley as an expert to use this model. In addition the Caversham metrological data set is also the most complete available.
107 It might well be data impacts, techniques and models available are under review, as stated by Mr Griffiths, but other than concerns about how conservative in his approach Mr Hurley might have been, it was apparent to the Tribunal that there was currently available specific guidance to an applicant on how a site specific odour assessment might be completed.
108 In this matter the Tribunal has viewed as a 'starting point' a buffer of 500 metres as required by SPP 4.5. The Tribunal had before it Guidance Statement No 3, which provides that a generic buffer distance might be reduced if supported by a site specific scientific study. The Tribunal accepted that the evidence showed that a site specific scientific study, presented on behalf of the applicant, has shown that the buffer can be reduced, not below the 300 metre minimum of Guidance Statement No 3, but to less than the 330 metre distance that would be between the development and the proposed poultry shed. At the margin of a buffer of 330 metres there would be less than what would be an acceptable odour unit average.
109 There is certainly evidence of a margin of error associated with the mapping of odour contours, but the Tribunal has accepted that the contour mapped by the applicant's consultant is acceptable in the circumstances. It would appear to the Tribunal that in this instance there would be an appropriate buffer provided between the proposed development and the poultry farm activity on Lot 801.
110 A buffer of 1 km as discussed by Mr Griffiths, especially, or 500 metres would certainly remove any doubt, but in circumstances where a neighbour has been required to accommodate the buffer of an odour omitting land use, then the site specific study conducted by an acknowledged odour expert must be given weight rather than simply effectively removing from a property neighbouring a poultry farm any potential for a use that might otherwise be allowed on the lot.
111 The Tribunal would add, however, that this conclusion relates only to the stage 1 development applied for. The Tribunal notes that the City did not and the Tribunal has not related any odour assessment to any later stages of the school development that might be applied for. Scientific studies would again have to be completed in relation to any fresh application. In this respect, while it is acknowledged that SPP 4.5 has as an objective the protection of existing poultry farms from encroaching sensitive development, this does not lead, in the Tribunal's view to any automatic support for further expansion of the poultry farm beyond what has now been approved without an appropriate scientific study to justify sheds closer to a neighbouring boundary. This is considered necessary in circumstances where neighbours bear the brunt of providing a buffer which potentially would severely curtail the uses that could be allowed with discretion on abutting lots, and even on lots further removed from the poultry farm site.
Conditions of approval
112 As ordered by the Tribunal, the respondent provided a schedule of conditions it would want imposed if the Tribunal were minded to allow the application. The applicant then provided its response to the conditions listed.
113 In considering the conditions, the Tribunal had regard to the conditions already imposed on the planning approval issued by the City. The Tribunal was concerned that conditions recommended by a second responsible authority not duplicate or conflict with conditions already the subject of an existing approval. The Tribunal addressed as an issue what were termed 'parallel' conditions in Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarradale [2012] WASAT 212 (Keysbrook Leucoxene). In that matter there were two decisionmaking bodies: the Minister for Environment under the Environmental Protection Act 1986 (WA) and the local government under its local planning scheme and extractive industry local law. The Tribunal found in Keysbrook Leucoxene at [30] that '… it is unnecessary to duplicate such requirements in the Shire's conditions' as already imposed by the Minister for Environment.
114 The Tribunal is of the opinion that it would not be sound planning practice to have a situation where the applicant was required to get clearances on essentially the same conditions from two different authorities which may result in contradictory determinations on whether a condition had been satisfied.
115 The respondent's recommended condition 2 was concerned with Nicholson Road being upgraded to provide for acceleration/deceleration lanes, median strips in the appropriate locations, carriageway widening, street lighting at the junction and directional signage. The Tribunal noted that in this matter, Nicholson Road in this location is under the care and maintenance of the City. The City's approval at condition 1 provides essentially the same requirements. The Tribunal therefore does not believe that this requirement should be reproduced in an approval under the MRS.
116 Recommended condition 3 would require access roads on the site to be constructed as public roads to ensure adequate interface and access to the proposed site. The Tribunal agrees with the applicant that this need not include the internal access road parallel to Nicholson Road and a future access road adjacent to the southern boundary. Those roads are not proposed to be built with the current development nor are they required for the current development to operate and the conditions related to the two additional access roads are not required.
117 The respondent submitted that the access road to be provided on the northern boundary of the site should extend to the western boundary, which is well beyond the existing development. The applicant submitted a plan that shows a public road serving the new development and where that road might be extended westward beyond the proposed development in the future, in conjunction with the northern neighbour, should that neighbour wish to develop.
118 The Tribunal considers this is adequate provision of a public road in this instance. Near the junction with Nicholson Road the Tribunal would widen the proposed road reserve to ensure that it extends to the northern boundary of the site so that the vegetation adjacent to that boundary near Nicholson Road is within the road reserve, rather than in a small area physically divided from the remainder of the site. An appropriate condition can be imposed accordingly.
119 The recommended condition 8 requires the connection to a reticulated sewerage service prior to the occupation of the site. As discussed above, the Tribunal concluded that the use could be served by septic tanks and leach drains for the first three years while sub stages are completed. After that time the development must be connected to reticulated sewerage. The Tribunal believes that a condition, worded appropriately, imposed under the MRS, would supplement rather than duplicate the condition imposed by the City.
120 Recommended condition 13 was that a noise assessment be submitted for approval by the Commission and attenuation measures be outlined by the noise assessment be implemented. As found above, in the discussion of noise, the Tribunal concluded that a further condition requiring a noise assessment in addition to that imposed by the City was not required.
Orders
The Tribunal makes the following orders:
1. The application for review is allowed.
2. The refusal by the Western Australian Planning Commission issued 12 June 2013 is set aside and planning approval is granted for the proposed educational establishment only within the brown line on the applicant's plan prepared by TNZ Architects, Drawing No SK01F dated 28 November 2012, subject to compliance with the following conditions:
(a) No significant development should be undertaken on the land required for the future widening of Nicholson Road pursuant to Plan No 1.2841 (attached).
(b) The applicant is to cede to the Crown free of costs and without payment of compensation by the Crown the land comprising the area of land shaded in red on attached Figure 6, the area of land located between the land shaded in red and the northern boundary of the site and sufficient area at the western end of the land shaded in red to create a cul-de-sac head turning area, for the purpose of a public road to the satisfaction of the Western Australian Planning Commission.
(c) The road between the school and Nicholson Road being constructed as a public road to the satisfaction of the Western Australian Planning Commission.
(d) The junction of the school access road with Nicholson Road is to be signalised and designed in accordance with Main Roads Western Australian and Austroads standards and specifications.
(e) A reticulated water supply service being made available to the site prior to occupation to the satisfaction of the Western Australian Planning Commission.
(f) A reticulated sewerage service being made available to the site within three years of the date of this decision, with any septic tanks and leach drain systems installed prior to that date being decommissioned at that time.
(g) The child care centre is to be open for children between 8 am to 4 pm Monday to Friday during school terms.
I certify that this and the preceding [120] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
Attachment: Plan No 1.2841
Attachment: Proposed Public Road Reserve
for shared access to adjoining Lot
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