Catalano and Shire Of Harvey - [2017] WASAT 55

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CATALANO and SHIRE OF HARVEY [2017] WASAT 55

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MR P DE VILLIERS (MEMBER)

HEARD: 9 FEBRUARY 2017 (FURTHER SUBMISSIONS FILED ON 7 MARCH 2017)

DELIVERED : 31 MARCH 2017

FILE NO/S: DR 17 of 2016

BETWEEN: BIAGGO ROSARIO CATALANO
CLEM DAVID CATALANO
Applicant
AND
SHIRE OF HARVEY
Respondent

Catchwords:

Town planning Development application Extractive industry Quarry Hard rock quarry Previous quarry use Existing gravel operation Rural area General Farming zone Greater Bunbury Region Scheme policies Protection of strategic agricultural land Places of landscape value Impact on amenity of locality Noise Vibration Truck movements Dust Visual amenity Scenic route Water management Birds and Fauna Interference with grazing Aboriginal heritage EPA Guidance 'Separation Distances between Industrial and Sensitive Uses' Sensitive land uses Environmental Protection (Noise) Regulations 1997 (WA) Conditions Timing of clearance of conditions Operating hours Time limit on approval

Legislation:

Aboriginal Heritage Act 1972 (WA)
Environmental Protection (Noise) Regulations 1997 (WA), reg 11, Div 2
Environmental Protection Act 1986 (WA), s 38
Greater Bunbury Region Scheme, cl 6(g)
Mines Safety and Inspection Act 1994 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2 cl 67
Planning and Development Act 2005 (WA), s 242, s 257B(2), s 257B(3)
Shire of Harvey District Planning Scheme No 1, cl 1.6, cl 2.3, cl 8.1, cl 9.1, cl 9.13.1, Sch 1, Sch 2, Sch 13
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Review allowed
Proposed quarry approved subject to conditions

Summary of Tribunal's decision:

In October 2013, the Shire of Harvey received an application from Biaggo Rosario Catalano and Clem David Catalano seeking planning consent for an extractive industry (hard rock quarry) at Lot 501 Coalfields Highway (formerly Coalfields Road), Wellington.
The proposed development was referred to the Environmental Protection Authority in March 2014 and a decision to not formally assess the proposal was subsequently subject to an appeal to the Minister for the Environment which was dismissed in August 2015.
The proposal raised a range of issues with both the Shire of Harvey and a number of adjoining landowners who were granted approval to make submissions on the proposal.
The substantive issues put by the respondent were whether the development will have an unacceptable impact on the amenity of the area and whether it was consistent with orderly and proper planning.
The Tribunal found based on the evidence before it in this review that in the circumstances of this particular case the impact on the amenity of the area, particularly the management of the blasting operation, could be dealt with by way of conditions. The Tribunal determined that the proposed hard rock quarry at Lot 501Coalfields Highway warranted support subject to a wide-ranging set of conditions.

Category: B

Representation:

Counsel:

Applicant: Mr J Skinner
Respondent: Mr C Slarke

Solicitors:

Applicant: Borello Graham Lawyers
Respondent: McLeods Barristers and Solicitors

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

Ienco and City of Melville [2007] WASAT 56
Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212
KIPA Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414
Lancaster and City of Swan [2012] WASAT 241
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124
PMR Quarries Pty Ltd and City of Mandurah [2010] WASAT 87
Puma Energy Australia and City of Cockburn [2016] WASAT 36
SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 16 October 2013, the Shire of Harvey (respondent, Shire or Council) received an application from Biaggo Rosario Catalano and Clem David Catalano (applicant) seeking planning consent for an extractive industry (hard rock quarry) with a total area of 15.5 hectares at Lot 501 Coalfields Highway (formerly Coalfields Road), Wellington.
This application was accompanied by an application for an Extractive Industry Licence which specified that the material to be excavated was granite and the term of the licence sought was 20 years.
While there has been no determination of the Extractive Industry Licence application by the Shire this matter does not form part of the current review.
Processing of the planning application was delayed due to extended liaison with the Environmental Protection Authority (EPA), the Department of Water (DoW), and the Department of Environmental Regulation (DER).
In addition, on 14 March 2014, the EPA received a referral of the proposed development from Dr Jorg Dieter Krone under s 38 of the Environmental Protection Act 1986 (WA) (EP Act). The proposal was duly reviewed by the EPA which on 18 March 2015 decided that the development did not require formal assessment. The EPA stated that:
… the potential impacts can be managed and mitigated by the proponent's mitigation measures and dealt with by other statutory processes.
This determination was subsequently the subject of an appeal to the Minister for Environment made by Dr Krone. After consideration of an Appeals Convener's report dated July 2015, the Minister on 3 August 2015 dismissed the appeal.
On 13 January 2016, the Tribunal received an application seeking a review of the deemed refusal of the planning application by the Shire.
On 12 April 2016, in response to an invitation from the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Shire considered the proposed development and resolved:
'That Council, in response to an invitation from the State Administrative Tribunal under Section 31 of the State Administrative Tribunals Act 2004 (WA) [sic] and following a review of all additional information provided, refuses the proposed Extraction of Granite from Lot 501 Coalfields Highway in accord with Application 13/29601 and 14/11545 submitted by Landform Research, for the following reasons:
1.The granite quarry will cause a loss of amenity to nearby landowners for the following reasons:
a.Disruption of the tranquillity of the area, especially during blasting;
b.Increase in local truck movements causing more noise and dust; and
c.Ongoing noise associated with processing (crushing) including the drone of large machinery.
2.The proposal is at variance with the intent of the 'General Farming' zone under the Shire of Harvey District Planning Scheme No. 1;
3.The proposal fails to have sufficient regard to the Environmental Protection Authority's draft Environmental Assessment Guidelines for Separation Distances between Industrial and Sensitive Land Uses 2015 (EPA Guidelines) and the EPA's existing Guidance Statement 3; Separation Distances between Industrial and Sensitive Land Uses;
4.The subject land is located WITHIN AREA 2 DARLING SCARP (SCHEDULE 2 POLICIES FOR PLACES OF LANDSCAPE VALUE) of the Shire of Harvey District Planning Scheme No. 1, whereby it is stated in Clause 2.2.2 'Mining or industrial development of the western escarpment of the Darling Ranges shall be discouraged';
5.The proposal is contrary to the policy statement for PRECINCT AREA 23 and the Shire of Harvey District Planning Scheme No. 1 where it is stated that 'It should be retained as a predominantly rural area for this important use. No subdivisional or zoning for nonagricultural purposes should be permitted'; and
6.The proposal is at variance with the Scheme's Clause 8.1 (a) 10, Planning Precinct Area 23 (Coalfields Road Landscape Unit and Southern Collie River Spur) (PP23), which is recognised as an important scenic route and should be protected from nonagricultural purposes.'
Following mediation in the Tribunal, and upon receipt of further information from the applicant and from other interested parties, the respondent was again invited to reconsider its decision.
On 18 October 2016, the respondent, after reconsideration, again resolved to refuse the application for the same reasons given in its refusal of the application on 12 April 2016.
While we have given no weight to this, we note that the application has been with the Shire since October 2013 and the Shire officers, following considerable consultation with relevant State government departments, have on two occasions recommended that the proposed quarry be approved.
More recently the proposed development was addressed at the Ordinary Council Meeting of 31 January 2017 where the respondent resolved that its position in regard to the proposed development at that time was as follows.
'That Council:
1.Having regard to the revised State Planning Policy No. 2.5: Rural Planning (published December 2016) and the evidence submitted to date in SAT matter DR 17 of 2016, accepts that the proposed development of a hard rock quarry at Lot 501 Coalfields Highway is capable of approval, subject to issues associated with blasting being satisfactorily addressed and the application of suitable conditions; and
2.Recommends that any development approval granted for the development should be subject to the conditions set out in the draft conditions set out in Attachment 2, together with any other conditions relating to blasting and noise which are appropriate having regard to the evidence on those matters.'
At the hearing before the Tribunal, counsel for the respondent submitted that 'unless and until there is a suitable blasting assessment which demonstrates that the development will comply, or can be made to comply, the development should not be approved' (T:17; 09.02.17).

Site and Locality

The site the subject of this review is Lot 501 Coalfields Highway (formerly Coalfields Road), Wellington (Site). It is located on the western escarpment of the Darling Scarp (approximately 23 kilometres east of the Bunbury CBD and 22 kilometres south of the Harvey townsite). It is approximately 407 hectares in area and is located within a predominantly large lot rural setting.
The Site is an irregular shaped land holding which generally runs northsouth from its northern boundary on Coalfields Highway to a stream on the southern boundary which feeds the Collie River. An approved gravel operation is located centrally in the northern portion of the Site.
The land to the west of the Site comprises Lots 500, 28 and 29, having a total land holding of 705 hectares. It is a tree farm which has essentially reached maturity and for several years has been, and is being, progressively clear felled. The land to the east and south of the Site forms part of Tynedale Farm, a land holding of 1518 hectares on eight titles. It is currently run as a beef farm. Some distance to the southwest of the Site is Roelands Village, the former site of the Roelands Mission, a 200 hectare property located on the northern bank of the Collie River. Land to the north across Coalfields Highway from the Site generally comprises various agricultural uses.

The proposed development

The proposal the subject of this review relates to an application for an extractive industry operation for hard rock (granite) on the Site.
The key elements of the proposal can be summarised as follows:
•The extraction of between 50,000 and 100,000 tonnes of hard rock per year.
•The hard rock will be extracted by drill and blast with an excavator, involving a total of four production blasts per year.
•An average of three to four external truck movements will be generated per day with vehicles utilising existing access roads on the Site.
•Extracted rock will be processed on site within the processing area where a mobile crushing plant will produce a range of products.
•The range of products produced will include aggregates for road base, asphalt and drainage, seal coats for roads, railway line ballast and coastal work.
The proposed quarry will be located fairly centrally on the lot on the location of an old quarry while the processing area, comprising approximately 5 hectares, will be further to the north of the proposed quarry and somewhat closer to the eastern boundary of the Site.
The estimated reserve of the quarry is over 1.3 million tonnes, the area of excavation is estimated at 10 hectares, and the life of the project is envisaged to be 20 years.

Planning framework

Greater Bunbury Region Scheme

The Site is zoned 'Rural' under the Greater Bunbury Region Scheme (GBRS). Coalfields Highway is a 'Primary Regional Road' under the GBRS.

Greater Bunbury Region Scheme Strategic Minerals and Basic Raw Materials Resource Policy

The principal purpose of the Greater Bunbury Region Scheme Strategic Minerals and Basic Raw Materials Resource Policy (Minerals Policy), which was introduced by the Western Australian Planning Commission (WAPC) in 2005, is to ensure longterm security of access for minerals and basic raw materials and to achieve this through appropriate land use planning and control of development.
The Minerals Policy identifies strategic mineral resources and basic raw materials GBRS area and seeks to:
•facilitate the timely extraction of resources;
•ensure the present and future extraction of basic raw materials and mineral resources are not prejudiced; and
•minimise the impact of extraction on surrounding land uses.
The Site is identified in Figure 1 of the Minerals Policy as an area of basic raw materials (gravel).
Clause 5.6 of the Minerals Policy establishes a presumption against development which would result in the establishment of sensitive land uses on land within adjacent to or in close proximity to the policy areas as this would potentially prejudice current or future mining of mineral resources or extraction of basic raw materials.
In December 2016, the WAPC released a draft revised version of the Minerals Policy for public comment. The draft revised Minerals Policy retains the identification of the Site as an area of basic raw materials (gravel).

Greater Bunbury Region Scheme - Strategic Agricultural Resource Policy

The Greater Bunbury Region Scheme Strategic Agricultural Resource Policy (Agricultural Policy) which was released by the WAPC in 2005 sought to identify strategic agricultural land within the Greater Bunbury Region Scheme area considered of State or regional significance and to protect the agricultural base of the area from the unplanned loss of high quality productive agricultural land due to permanent changes of land use. It also sought to minimise land use conflicts between the agricultural activities and other land uses within and adjacent to the identified strategic agricultural areas.
The WAPC recently released a draft revised Agricultural Policy. The Site retains a location outside of the Agricultural Policy areas and associated buffer areas in the revised draft.

State Planning Policy 2.5 - Rural Planning

The recently revised State Planning Policy 2.5 - Rural Planning (SPP 2.5) came into effect in December 2016. The purpose of this policy is stated to be to protect and preserve Western Australia's rural land use assets due to the importance of the economic, natural resource, fruit production, environmental and landscape values.
Policy objective 4(c) of SPP 2.5 reads as follows:
outside of the Perth and Peel planning regions, secure significant basic raw material resources and provide for their extraction[.]
Clause 5.9 of SPP 2.5 sets out the WAPC's policy for basic raw materials outside the Perth and Peel planning regions and relevantly includes the following:
(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 longerterm use and development;
(g)sensitive zones and/or land uses may be approved where it can be demonstrated they will not limit the existing or potential extraction of basic raw materials[.]
In the policy 'Significant Geological Supplies' are defined as:
Basic raw materials identified by the Department of Mines and Petroleum as having State significance due to the size of the resource, relative scarcity, demand and/or location near growth areas and transport routes.
Clause 5.12.2 of SPP 2.5 sets out the WAPC's position in regard to planning for sensitive land uses in rural zones. These considerations include at sub-clause (e):
where primary production sites require caretakers' dwellings for management or operational purposes, these dwellings should not be considered a sensitive land use, noting that occupational health and workplace safety requirements will apply[.]
The relevance of a caretaker's dwelling will become apparent later in these reasons.

State Planning Policy 4.1 State Industrial Buffer (Amended)

The objectives of State Planning Policy 4.1 State Industrial Buffer (Amended) (SPP 4.1) are set out in cl 4 and comprise the following:
•avoid conflict between industry and/or essential infrastructure and sensitive land uses;
•protect industry and/or essential infrastructure from encroachment by those land uses that would be sensitive to impacts and adversely impact the efficient operations;
•provide for the development of industry and/or the provision of essential infrastructure in a way that maximises amenity, minimises environmental and health impacts and takes account of risk to nearby sensitive land uses; and
•promote compatible uses in areas affected by off-site impacts of industry and/or essential infrastructure.
The policy measures of SPP 4.1, set out in cl 5, seek to minimise land use conflict by requiring new industries to demonstrate if and how they intend to contain emissions onsite and that they are located to provide and maintain an appropriate buffer between the proposed industrial uses and sensitive land uses.
SPP 4.1 confirms that proposals that satisfy recommended buffer distances in Guidance for the Assessment of Environmental Factors - Separation Distances between Industrial and Sensitive Land Uses No 3 (Environmental Protection Authority, June 2005) (EPA Guidance) are deemed to comply with the objectives of SPP 4.1.
Clause 5.3 of SPP 4.1 establishes that technical analysis is required if a proponent seeks to reduce the buffer from those specified in the EPA Guidance and in circumstances where an industry seeks to expand its operations or where cumulative impacts may occur.
Such technical analysis is required to include:
identification of the nature of the off-site impacts which may adversely affect more sensitive land uses (eg noise, smoke, dust, odour, vibration and light) or create risks;
evaluation of the predicted or measured emissions and risk levels against accepted criteria … ;
assessment of measures required to meet licence conditions and best practice approaches that may feasibly be used to ameliorate off-site impacts and risk associated with the siting and operation of the proposed industry[.]

EPA Guidance

The EPA Guidance is intended to provide advice on generic separation distances between specific industry and sensitive land uses to avoid or minimise the potential for land use conflict.
Clause 4.4.1 states:
Where the separation distance is less than the generic distance, a scientific study based on site- and industryspecific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts. (Original emphasis)
Appendix 1 of the EPA Guidance provides the separation distances for 'Extractive industries hard rock' and provides for a buffer distance of 1000 metres, with potential impacts identified as noise, dust and risk.
In 2015 the EPA released a Draft Environmental Assessment Guideline for Separation Distances between Industrial and Sensitive Land Uses (Draft Environmental Assessment Guideline).
Sensitive land uses are defined as follows:
… land uses applied to places where people live or regularly spend time and which are therefore sensitive to emissions from industry. They include residences, hospitals and nursing homes, shortstay accommodation, schools, child care facilities, shopping centres, playgrounds, and some public buildings. Some commercial and institutional land uses which require high levels of amenity or are sensitive to particular emissions may also be considered sensitive land uses.
Appendix 1 of the Draft Environmental Assessment Guideline provides the separation distances for 'Extractive industries' (hard rock quarrying including blasting, crushing and screening) and provides a recommended separation distance of 1500 metres, with potential impacts identified as noise, dust and risk.

WAPC Visual Landscape Planning in Western Australia

The Visual Landscape Planning document is a manual which provides advice to state agencies, local governments, developers and the community on techniques for incorporating visual landscape planning into the planning system.
It is neither a 'statutory procedure' nor 'prescriptive policy' and is intended to be used as a guide. It is the tool to be used to assess the impact of development on the landscape to ensure that development is sympathetic to the landscape character and complies with adopted policies and rules.
Part 3 contains guidelines for the location, siting and design of mines, quarries and extraction pits and sets out a range of matters to be considered.

Shire of Harvey District Planning Scheme No 1

The Agricultural Policy areas identified in Figure 1 of that policy generally reflect the land which is zoned 'Intensive Farming' under the Shire of Harvey District Planning Scheme No 1 (DPS 1 or Scheme). However, the Site falls outside both of these areas and the associated buffer areas identified in the Agricultural Policy.
The objectives of DPS 1 are set out in cl 1.6 and include:
…
(e)to retain the pre-eminence of agriculture, and restrict development that detracts from the potential of significant agricultural land; [and]
(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[.]
The Site is located within the 'General Farming' zone under DPS 1.

51 Table 27 of DPS 1, in dealing with zoning and development standards for General Farming establishes the following policy statement:

Council intends to encourage these areas to continue to be used for viable large scale farming activity. Council will encourage and promote good farming, animal husbandry and soil conservation. Some limited tourist and recreational activity may be permitted where no adverse effect to the primary agricultural purpose of the zone will result.

It should be noted that DPS 1, having been gazetted in 1996, is an extremely dated statutory provision which in the Tribunal's view needs to be weighted in the context of the recently adopted State government policies cited above.
The proposed use is an 'Extractive Industry' which is defined in Sch 13 of DPS 1 as follows:
Industry - Extractive: Means an industry which involves:-
(a)the extraction of sand, gravel, limestone, clay, turf, soil, rock, stone, minerals, or similar substance from the land, and also the storage, treatment or manufacture of products from those materials is extracted or on land adjacent thereto[.]
An Extractive Industry is what is referred to as an SA use in the General Farming zone under DPS 1, that is, a use that the Council may, at its discretion, permit after notice of the application has been given in accordance with cl 2.3.
Clause 9.13.1 provides that a person shall not carry on an extractive industry on any land within the Shire of Harvey without first having obtained an Extractive Industry Licence and Planning Approval from Council.
Clause 8.1 'Scenic Roads Visual Protection' provides that Council may from time to time declare that certain roads of scenic value shall be the subject of a building setback line. The Building Line setbacks on Coalfields Highway have been established as 80 metres on both sides between South West Highway and the Eastern Boundary of the Shire.
Clause 9.1 provides that Council may establish development requirements for places of landscape value which 'should be retained in their present state, or restored to their original state, or to a state acceptable to the Council'.
Places of Landscape Value are set out in Sch 1 of DPS 1 and include the Darling Range constituting 'That part of the Scheme Area generally between South West Highway and the eastern boundary of the Shire as depicted on the Scheme Map' which is identified as '[a]n area of significant landscape value including the Darling Scarp and the Range plateau and valleys'.
Schedule 2 of DPS 1 sets out policies for places of landscape value. The Site falls within Area 3 Darling Range. Schedule 2 sets out the following for Area 3:
…
2.2.2Mining or industrial development on the western escarpment of the Darling Range shall be discouraged.
…
2.2.5Clearing of the skyline should be restricted and farmers should be encouraged to reafforest existing cleared land.
Finally DPS 1 provides for Precinct Policy Area Statements. The Site falls within Precinct Area 23 Coalfields Road Landscape Unit and Southern Collie River Spur. The relevant Precinct Policy Area Statement establishes the following provisions:
Boundaries
The area is bounded on the west by the South-Western Highway, on the north by a line taken along the crests of ridges and hills assessed as being the limit of visibility from Coalfields Road, and on the east and south by the Shire boundary. The area measures approximately 6,330 hectares.
Precinct Policy Area Statements
The Coalfields Road rises from the coastal plan to a high point in the scarp from which there are wide ranging views across the hills and the coastal plain. This makes the route an important scenic route and similar considerations apply as for Precinct Area 22. It is also important for winter refuge grazing.
•It should be retained as a predominantly rural area for this important use. No subdivision or zoning for non-agricultural purposes should be permitted.
•Areas visible from Coalfields Road are not generally considered suitable for special rural zone development.
•There is however potential for a tourist development to take advantage of the magnificent view from a plateau area on the northern side of Coalfields Road on Lot Pt. 21. The area is on an elevated spur but screened from the road by remnant vegetation.
Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) sets out matters to which the local government, or the Tribunal on review, is to have due regard in considering an application for development approval. In consequence of s 257B(2) of the Planning and Development Act 2005 (WA) (PD Act) and reg 8(1)(c) and reg 10(4) of the LPS Regulations, the deemed provisions in Sch 2 of the LPS Regulations have effect as part of DPS 1. Furthermore, in consequence of s 257B(3) of the PD Act, if a deemed provision that has effect as part of DPS 1 is inconsistent with another provision of DPS 1, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect'; Puma Energy Australia and City of Cockburn [2016] WASAT 36 at [30].
In the context of the current review these include the following relevant provisions:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
(d)any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e)any policy of the Commission;
(f)any policy of the State;
(g)any local planning policy for the Scheme area;
…
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
(p)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;
…
(v)the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses;
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66[.]

The issues and s 242 submissions

The issues put forward by the respondent in this matter are as follows:
1.Will the proposed development have an unacceptable impact on the amenity of the locality by reason of any one, or a combination of, increased noise (from processing, blasting, or vehicle movements), vibration, truck movements, dust or effect on visual amenity?
2.Is the proposed development consistent with orderly and proper planning, having regard to:
(a)the location of Lot 501 in the place of landscape value, on a scenic route recognised by the Scheme, and within Precinct Area 23;
(b)the Scheme provisions applicable to Lot 501 and the proposed development; and
(c)the separation distance between the proposed development and neighbouring land?
The applicant does not challenge the issues put forward by the respondent.
However, a number of parties were granted leave to make submissions in regard to the matter under review and the issues raised in those submissions should also be addressed.
On 28 October 2016, each of Mr Denis Cullity, the Indigenous Land Corporation and Woolkabunning Kiaka Incorporated were granted leave by the Tribunal pursuant to s 242 of the PD Act to make submissions in respect of the application.
On 1 December 2016, Dr Krone was also granted leave by the Tribunal pursuant to s 242 of the PD Act to make submissions in respect of the application.
In addition, Mr Cullity, Dr Krone and Mr Les Wallam, the CEO of Woolkabunning Kiaka Incorporated, provided witness statements on behalf of the respondent.
These submissions and witness statements were supported by a wide range of documents in evidence which included consultant reports on planning, blast management, environmental issues, noise assessment, water management, and a document entitled 'Tyndale Farm', and documents on land values, and potential impacts on cockatoos.
Further to the above, a second submission from Dr Krone submitted on 1 February 2017 was accepted by the Tribunal.
In addition, a further submission from Dr Krone was received the day prior to the final hearing, which among other matters sought to involve a number of State Government Ministers in the proceeding.
By email dated 8 February 2017, the Tribunal advised Dr Krone that we had not received an application from any of the relevant Ministers to intervene in the proceedings, and that the final hearing on 9 February 2017 would proceed as scheduled.
At the final hearing, we received the further submission of Dr Krone.
While these witness statements, submissions and supporting reports raise a broad range of issues the substantive aspects raised can be characterised as falling within the following 'areas of concern':
•potential impacts on visual amenity;
•the impacts of noise and vibration;
•environmental concerns associated with dust and water management associated with processing, blasting, and vehicle movements;
•potential impacts on birds and fauna;
•potential interference with grazing and health of cattle;
•potential impacts on Aboriginal heritage;
•potential decrease in land values;
•impacts of the existing gravel operation; and
•procedural issues (concerns with the process).
While impacts on visual amenity, noise and vibration and dust and water management and associated with processing, blasting, and vehicle movements fall within the matters addressed by expert witnesses in response to the issues agreed between the parties, the potential impact on birds and fauna and potential interference with cattle and Aboriginal heritage fall outside those issues and will be addressed separately.
It should however be noted that of the 'areas of concerns' identified, the issues relating to land values and existing gravel operations, and also the concerns about procedural issues, fall outside the ambit of the current review for the following reasons:
•In regard to land values, in Ienco and City of Melville [2007] WASAT 56 at [39] the Tribunal found:
It should be immediately reaffirmed that the alleged diminished value of affected neighbours' land is not, in itself, a relevant planning consideration. See, for example, Planning & Environment Victoria (Butterworths Looseleaf Service) at [1.105.1]: 'Depreciation of land values in the locality as a result of a proposed development is not a planning ground'.
•The existing gravel operation on the site is subject to a separate planning approval granted by the Shire subject to conditions. That approval is not part of this proceeding and any real or perceived issues with that operation do not constitute a relevant consideration in this review.
•The Tribunal is required to determine the substantive issues associated with the proposed development and concerns of a procedural nature in terms of the manner in which various state or local government agencies may have dealt with the application are not questions the Tribunal is required, or has jurisdiction, to consider.
In dealing with the issues under review the Tribunal will first address the question of orderly and proper planning and following this address the question of potential amenity impacts.

Orderly and proper planning

The principles to be applied in addressing the question of orderly and proper planning were set out by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [180] [181] as follows:
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.
(Footnotes omitted)
In the current review, the relevant matters include both the regional planning statutory and policy framework and the applicable district planning scheme.

Regional planning statutory and policy framework

In terms of the Greater Bunbury Region Scheme - Strategic Minerals and Basic Raw Materials Resource Policy, or the Minerals Policy as the Tribunal has referred to it earlier in these reasons, the Tribunal finds that it is a relevant consideration that the Site is identified for basic raw materials (gravel) and that the proposed development is supported by the Department of Mines and Petroleum.
On 15 November 2013, in responding to the proposal, the Department of Mines and Petroleum advised the Shire as follows:
A continuing supply of low-cost basic raw materials is an important part of maintaining the lifestyle and infrastructure that all Western Australians enjoy. Other than the Roelands government quarry, this department is not aware of any other quarry for granite hard rock in the region. This type of rock could compliment the Bunbury Basalt as a source for hard rock in the South West.
In terms of the Greater Bunbury Region Scheme - Strategic Agricultural Resource Policy, or the Agricultural Policy as the Tribunal has referred to it earlier in these reasons, the Tribunal relies on the advice of the Department of Agriculture and Food which on 11 November 2013 advised the Shire that it 'does not object to the proposed extractive industry for granite extraction and crushing at the abovementioned lot'.
The aims of the GBRS at cl 6(g) seek to 'protect strategic agricultural land considered to be of State or regional importance'. As the proposal does not impinge on strategic agricultural land and based on the advice of both the Department of Mines and Petroleum and the Department of Agriculture and Food, the Tribunal finds that the use of the site as a quarry is consistent with the regional planning statutory and policy framework established by the GBRS and SPP 2.5.
The joint expert witness statement from the planning experts in addressing separation distances noted the following:
•The proposal would be contained on a very large Lot in an area also comprising very large Lots;
•There are no existing dwellings within two kilometres of the proposed operations;
•Whilst an approval has been granted for a Caretaker's Dwelling on Lot 500 approximately 800m away, the experts noted that it has not been built and that, pursuant to Clause 5.12.2(e) of SPP 2.5 (Rural Policy), caretaker's dwellings should not be considered as a Sensitive Use;
•The dwelling was applied for on a Lot that conducts Forestry Activities and was applied for at a time when both the existing and proposed extraction operations on the Review Site would reasonably have been known of;
•In any event the experts noted that measures have been proposed by the Applicant to mitigate prospective impacts on the dwelling, notwithstanding it should not be considered as a Sensitive Use, in order to address prospective amenity impacts from the Review Site. These are matters that are presently being contemplated by the respective noise experts;
•The experts were satisfied that there would be sufficient separation of the proposed development from adjoining properties and that the proposed development could occur, noting that externalities would be capable of being managed by way of appropriate conditions.

It should in this regard be explained that on 27 April 2016, the respondent approved a single dwelling and outbuildings (Caretaker's Cottage) on Lot 500, the property immediately to the east of the Site.
Based on the joint expert evidence of the planners, which the Tribunal accepts, the Tribunal finds that the proposal complies with the relevant provisions of SPP 4.1 and the EPA Guidance.
It should be noted that this finding does not resolve the question of compliance with the applicable EPA Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) which is addressed in dealing with potential amenity impacts.

District planning scheme

In addressing the fact that the Site is a place of landscape value, on a scenic route and within Precinct Area 23, the joint expert witness statement from the planning experts considered that the proposal is consistent with orderly and proper planning, noting the following:
•The [Site] is in a Landscape Value Area;
•However, the experts agree that the proposal would not be visible from Coalfields Road (a nominated scenic route);
•The experts agree that the proposal will either not be visible from existing dwellings or, if visible, would only be visible from a long distance;
•The experts agree that with respect to the discouragement of mining or industrial development on the western scarp, that the development areas are not contained on the western scarp;
•In any event the experts agreed that to the extent that the development would be visible, visual impacts would not be unacceptable;
•With respect to the land's inclusion within Precinct Area 23, the experts noted that the proposal will not affect the predominance of the area for rural purposes and is not a proposal that involves rezoning and/or subdivision.
In regard to the potential impacts on visual amenity raised by Mr Cullity and Dr Krone, the witness statement of Ms Denise Morgan included a detailed assessment of viewsheds from houses and properties in the locality and states 'the visual impact of the proposed quarry and processing plant would be minimal and in fact it will not be seen from the highway or from the vast majority of houses in the surrounding area'.
Ms Morgan concluded that 'there is only one existing house that may be able to see part of the proposed processing area, and that is over four kilometres away. Thus I conclude that concern about potential negative visual impact from the proposed development is not justified'.
In his witness statement, Dr Krone, in expressing the view that the quarry and processing areas 'will be very visible from parts of my property' acknowledges 'that they will not be seen from the existing dwellings'. Mr Cullity in his witness statement states 'the proposed hard rock quarry can be clearly seen from my property'.
In regard to potential impacts on visual amenity the Tribunal accepts the detailed assessment of viewsheds undertaken by Ms Morgan and the conclusions of the expert planners and finds that that to the extent that the development would be visible, visual impacts would not be unacceptable.
In addressing the additional scheme provisions the planning experts in their joint witness statement found as follows:
With respect to consideration of the Scheme provisions applicable to Lot 501 and the proposed development, the experts agreed that for the reasons expressed in their respective statements, the proposal was not inconsistent with orderly and proper planning having regard to the relevant Scheme provisions for the reasons outlined in respect to Issue 2(a) above [a place of landscape value], but also in recognising that Extractive Industry is a discretionary use in the General Farming zone and the Review Site is specifically identified within a strategic basic raw materials resource area.
Consequently, there is a reasonable expectation that such activities would occur in this area, noting that other intensive forms of rural activity (i.e. forestry) also occur on adjoining Lot 500.
The Tribunal accepts the evidence of the planning experts and finds that in the context of the relevant provisions the use is acceptable on the Site as it complies with the following provisions of DPS 1 for the reasons set out below:
•The proposed development meets the relevant objectives of the Scheme (cl 1.6(e) and (f)) in that it does not detract from the potential of significant agricultural land or impinge on places of natural beauty based on the joint evidence of the expert planners and the advice of the Department of Agriculture and Food.
•It complies with the provisions of Table 27 in that it does not impinge on the continued use of the general farming area for viable large scale farming activity.
•It complies with cl 8.1 as the development is set back in excess of the required 80 metres from South West Highway.
•It complies with cl 9.1 in that while the limited clearing proposed will require a clearing permit the joint evidence of the environmental experts is that they see no reason why such a permit should not be issued.
•In terms of the provisions of Sch 2 the Tribunal accepts the joint evidence of the planning experts that 'the development areas are not contained on the western scarp'.
•The development will not undermine the principle established for Precinct Area 23 that the precinct should be retained as a predominantly rural area.
•In addition, the Tribunal notes that the Site is identified for basic raw materials (gravel) in the Minerals Policy and accepts the joint evidence of the planning experts that 'there is a reasonable expectation that such activities would occur in this area'.
Having assessed the proposed use against the relevant provisions of both regional planning statutory and policy framework and the applicable district planning scheme the Tribunal finds that, subject to the acceptability or otherwise of potential amenity impacts, the use of the site for a hard rock quarry is acceptable.

Potential impacts on the amenity of the locality

In assessing the potential impacts on amenity the substantive question is, in the respondent's view, the issue of blasting noise and vibration. However, a range of further issues were raised in the s 242 submissions in evidence and will also be addressed.
The question of noise levels associated with the daytoday operations of the quarry and any potential impacts on the eastern boundary were considered by the noise experts in their joint witness statement. They agreed that 'management practices are available, for example, the usage of this equipment being limited to less than 24 min in any 4 hour period, so that exceedances of the L_A10criteria are not triggered'. Given this outcome further consideration of this aspect is not required.
In addition the respondent provided no expert evidence on estimated truck movements and did not seek to ventilate this issue at the hearing.
The assessment of potential amenity impacts therefore includes assessment of the following aspects:
•blast noise and vibration;
•dust and water management;
•potential impact on bird and fauna; and
•potential interference with cattle.

Blasting noise and vibration

The joint expert witness statement from the environmental experts, Mr Lindsay John Stevens for the applicant and Mr Michael John Waite for the respondent, agreed the following:
…
4.We agree that the proposed hard rock quarry and supporting infrastructure, of annual production of 50,000 to 100,000 tonnes per year in the applied for location, is a small operation compared to existing hard rock quarries.
5.We agree that the environmental risks and impacts including blasting, from the proposal are small and can be readily managed by normal 'best practice' quarry management. We defer to the Acoustic Experts with respect to compliance to the Environmental Protection (Noise) Regulations 1997.
6.We agree that the proposed operations can be adequately controlled by the Department of Environmental Regulation Works Approval and License and Conditions of Planning Approval[.]
In the joint witness statement prepared by the acoustic experts, Mr Tim Reynolds for the applicant and Mr Martti Warpenius for the respondent, the experts agreed that noise emissions from the proposed quarry, save for blasting can comply with the requirements of the Noise Regulations.
However, the experts disagreed as to whether there was a need for an assessment for blasting noise and vibration. It was Mr Reynolds' opinion that compliance can be achieved without undertaking such an assessment, while Mr Warpenius believed that an assessment is required of the proposed blasting activities at the site.
Mr Warpenius in the joint witness statement of the acoustic experts stated this concern in the following terms:
… Without an analysis there is simply insufficient information available to determine the nature of blasting activities and the forecast levels[.]
This issue was addressed by further evidence provided to the Tribunal at the hearing.
Given this further evidence, and the importance of this issue in terms of the range of factors to be considered in this review, this issue is dealt with more fully below.
At the hearing it was Mr Warpenius' evidence that he accepted that the vibration impacts associated with blasting could be made to meet the relevant statutory limits (T:33; 09.02.17). In this context the single outstanding question at issue between the acoustic experts is that related to blasting noise.
The acoustic experts, in their joint witness statement, agreed that the overall noise emission from the site needs to meet the Noise Regulations and the method by which this is achieved should be a matter for the quarry.
The Noise Regulations set out the following provisions at reg 11 of Div 2:
…
(6)Despite subregulation (4), airblast levels for 9 in any 10 consecutive blasts (regardless of the interval between each blast), when received at any other single premises between 0700 hours and 1800 hours on any day, must not exceed
(a)for airblast levels received at noise sensitive premises
(i)when received at a sensitive site 115 dB L_Z peak; or
(ii)when received at a location other than a sensitive site 120 dB L_Z peak;
or
(b)for airblast levels received at any other premises 120 dB L_{Z peak}.
(7)For the purposes of subregulation (6), an airblast level for a blast that would, but for this subregulation, exceed a level specified in subregulation (6)(a)(i) or (ii) or (b) is taken not to exceed that level when received at premises, or a part of premises, on which the blaster believes on reasonable grounds no person is present at the time of the blast[.]
In the particular circumstances of this review the application of these provisions would mean:
•Until the approved Caretaker's Cottage is constructed it is not relevant in terms of the application of the Noise Regulations. 'At this [stage] there is no cottage there so in theory there is no need to assess the cottage as such' (Mr Warpenius, T:37; 09.02.17).
•In addition, where 'the blaster believes on reasonable grounds that no person is present at the time of the blast' at the boundary of an adjoining property, or any area of that property potentially affected by an airblast level above the prescribed level, that level is taken not to exceed the prescribed level when received. 'I do recognise also [that] the legislation states that where the shotfirer reasonably believes there is no person on the adjoining lot then these limits don't apply' (Mr Warpenius, T:38; 09.02.17).
However, should the Caretaker's Cottage be constructed and occupied at the time of a blast or people be present at the boundary of the property or in any area of an adjourning property potentially affected by the airblast the Noise Regulations would apply.
At the hearing two further reports on blasting were provided in evidence and subject to detailed examination. These comprise:
•Blasting: Environmental Noise and Vibration Assessment February 2017 prepared by Mr Reynolds.
•Blast Noise Forecast dated 9 February 2017 prepared by Mr Warpenius.
It should be noted that Mr Reynolds based his modelling on a total blast size around 200 kilograms, while Mr Warpenius assessed both a charge mass of 2 kilograms and 20 kilograms per hole.
The modelling undertaken by Mr Warpenius established that, using a 2 kilogram charge mass, while the blast would comply at the, as yet unconstructed, Caretaker's Cottage it may not comply at the boundary. It was his evidence that:
•'[I]t's my opinion that the eastern boundary … of the quarry would be more [likely] to exhibit high levels than the western boundary' (T:38; 09.02.17).
•'[I]f it's at 20 kilograms we can see there's a grey area and all of a sudden the upper range will be over and the lower range will be under' (T:37; 09.02.17).
•'[O]n the basis we are generating levels in the ball park with a two kilogram charge 125 to 105 so recognising the limit on the boundary is 120 then we may get a moderate exceedance by [5] decibels whereas with larger charges that exceedance could be 15 decibels' (T:38; 09.02.17).
Mr Stephens concluded that '[t]he predicted noise levels from blasting would comply with the requirements of the Environmental Protection (Noise) Regulation 1997'. The results of his modelling indicated that 'the peak noise received at the worst case location at the boundary would be 118 dB_z peak'.
Essentially then while Mr Stephens believes the blasting noise levels will comply at the boundary, Mr Warpenius is concerned that, based on his modelling, there may be a minor exceedance should a 2 kilogram charge mass be used while a 20 kilogram charge mass could generate a more substantive exceedance meaning that if people were present on the boundary or within reasonable proximity of the boundary the blasting noise levels would not comply with the requirements of the Noise Regulations.
In terms of the charge mass it was Mr Stephens' evidence that 'the data that I gave Mr Reynolds was for a blast which had blasted [34,457] tonnes. They used 206 kilograms of charge and there were 122 holes, in other words, there was less than two kilograms per hole' (T:48; 09.02.17).
Mr Warpenius' view was that:
… it really boils down to the fact that because I'm not confident of understanding what's actually proposed it would be very very difficult for me to make statement to say that I would that the site can comply. (T:38; 09.02.17)
In this context the Tribunal is left with the task of weighing all of the relevant evidence before it in seeking to come to the correct and preferable decision.
Counsel for the respondent submitted that:
We accept that prima facie if you were going to have an extractive industry involving blasting (indistinct) rural zoned land and it's the type of use which, broadly speaking, the planning framework, in fact, encourages. (T:12; 09.02.17)
However, while accepting this broad parameter it was submitted that:
… the principle, we say, should be that planning approval is not granted unless and until the person who is applying for the approval demonstrates, to an appropriate degree of confidence, that what they're proposing to do will comply with the law.
In this case, the noise regulations relating to blasting[.] (T:12: 09.02.17)
And that:
… unless and until there is a suitable blasting assessment which demonstrates that the development will comply, or can be made to comply, the development should not be approved. (T:17; 09.02.17)
This position was based on the contention that:
The condition is intended to deal with incidental aspects of a development. It shouldn't be applied where there is a possibility that the condition could lead to a situation where you can't do the development or the development turns into something quite different to that which was applied for. (T:12; 09.02.17)
In Lancaster and City of Swan [2012] WASAT 241 the Tribunal found at [78] as follows:
… The purpose of a planning condition is to regulate incidental aspects of the development. As Debelle J articulated in Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 at 423:
The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. … The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development form being used in the ordinary way. Resort to the use of such conditions is tantamount to an acknowledgement that the proposed development is inappropriate for the subject land. If a planning authority imposes this latter kind of condition, it is using the power to impose conditions for a purpose which was not intended because it goes beyond incidental aspects of the intended land use and strikes directly at the intended land use[.]
To place this in context, Debelle J found in KIPA Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 (KIPA Freeholds) at [38]:
… The power to impose conditions must not obscure the first question to be determined by the planning authority, namely, whether the proposed development is a suitable and appropriate use of the land. It is only after that question has been answered affirmatively that the planning authority should turn its attention to appropriate conditions[.]
In the matter under review the Tribunal has found that based on the evidence before it and for the reasons set out above that while the proposed use is a suitable and appropriate use of the land the respondent's submission that 'unless and until there is a suitable blasting assessment which demonstrates that the development will comply, or can be made to comply, the development should not be approved' requires to be addressed in any determination of the review (T:17; 09.02.17).
In KIPA Freeholds Debelle J found at [39]:
… And so it is that conditions frequently deal with such matters as landscaping, stormwater drainage, advertising and other signs, and fencing. Not infrequently, conditions will impose a constraint upon the use to be made of the proposed development in the form of a restriction upon hours of use or a limit as to the level of noise. But there is an important difference between conditions of that nature, which deal with incidental aspects of the proposed development and the intended use of the land, and conditions which restrain the very nature and essence of the development in a way which requires the development or the land to be used in a way significantly different from the use or uses intended[.]
In Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124, the Tribunal found at [85]:
… The Tribunal accepts that incidental aspects of a development may properly be the subject of a condition which requires the preparation of a plan, detail or specification for approval by the original decisionmaker and implementation of the approved plan, detail or specification. A condition cannot lawfully defer, for later consideration, a non-incidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made' (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case. For example, in this case, dust mitigation and landscaping are incidental aspects of the proposed development. However, in the case of a concrete batching plant, dust is likely to be a central aspect, and in certain cases, landscaping might well be a central aspect of the development in relation to which the consent authority needs to be satisfied at the time it grants development approval.
(Tribunal emphasis)

In this context the substantive issue is whether blasting, in the particular circumstances of the current review, constitutes a nonincidental or incidental aspect of the development. As we have already pointed out, this goes to the question of fact and degree.
It is clear that blasting is both an integral and in fact antecedent aspect of a quarry operation. In addition, it is not in dispute between the parties that should the quarry be approved it would be appropriate to attach conditions associated with the blasting operation.
The evidence before the Tribunal provided by both the environmental and acoustic experts identifies that there were a wide range of parameters associated with the operational aspects of blasting which the consultants responsible for the blasting operation could effectively manage to ensure that the operation complies with the relevant statutory requirements.
The Blast Management Plan submitted with the applications sets out the following mechanisms to minimise blast impact:
•Use smaller diameter drill holes.
•Reduce the height of benches.
•Use blast initiation sequences that drive away from areas of concern.
•Achieve the best firing time by delaying the blast, if necessary. This can raise other issues and is not always available.
•Increase stem lengths in blast holes.
•Splitting charges in half to reduce the kg of explosives per delay.
•Manipulate the delay sequences and point of initiation.
•Use greater front row burdens.
•Generate ground vibration reduction trenches, although this may not be possible in all situations on site.
•Firing more holes less frequently, because it is found the local people generally prefer less blasts rather than more blasts even if they are smaller.
•Use of pre-splitting or line drilling to create a smooth face and reduce impacts.
•Use of air decks to manipulate the blast.
In addition, evidence was provided by Mr Stephens that the data on which the Blast Management Plan is based relies on actual blast data from a comparable quarry. In addition, evidence was provided of a number of comparable quarries which operated with sensitive uses in closer proximity to the quarry operation than the existing residences, or in fact the proposed Caretaker's Cottage, in the locality of the site the subject of this review.
Mr Waite, the environmental expert called by the respondent gave evidence that:
… the DER is of the opinion that it can be managed and I would generally accept that that is usually the case … generally a quarry is a quarry is a quarry. There's lots of them in Western Australia and they have to meet the same and they do meet the environmental legislation conditions. (T:54; 09.02.17)
Mr Waite also provided evidence as to the consequences of noncompliance as follows:
… There have been some in the past that have had noncompliance … they then would be told they stopped work until they can prove that they can achieve their licence and then, of course, they've got to do the monitoring and the test blasts and all the rest of it[.] (T:54; 09.02.17)
While accepting the concern expressed by Mr Warpenius that he did not have enough information to make an assessment, the Tribunal considers that, although blasting is an integral and important component of a quarry operation, there are a number of viable parameters associated with the blasting operation which can be managed to ensure compliance.
In this context the Tribunal finds that the management of the blasting operation by way of conditions would not leave open the possibility that development carried out in accordance with the consent and conditions will be significantly different from the development for which the application is made. We make this finding for the following reasons:
•The evidence before the Tribunal clearly establishes that there are a range of parameters associated with the blasting operation which can be manipulated by the blasting consultants in the design of the blasting procedures to ensure compliance with the Noise Regulations.
•The evidence also establishes that in spite of the large number of quarries where blasting is regularly undertaken in Western Australia, including a number which appear to be more constrained in terms of the proximity of sensitive uses, there are very limited and intermittent circumstances of breaches of the Noise Regulations.
•There are effective mechanisms in place in terms of addressing any possible incidences of noncompliance with the Noise Regulations.
•In determining not to assess the proposed quarry the EPA specifically assessed the 'impact of blasting and use of rock hammers with consequential impacts on noise and blast waves' and considered both the 'small number of blasting events' and the 'proponent's proposed management of noise and dust impacts'. The EPA specifically noted '[t]he proposal is also expected to meet the Noise Regulations' and that 'the potential impacts can be effectively dealt with … works approval and licencing requirements of the Department of Environmental Regulation (DER) to ensure the management of noise and dust'.
More specifically the EPA noted that '[t]he proponent has confirmed that blasting activities will be undertaken by licenced contractors. The proponent has included management measures to limit the potential impacts of blasting activities and monitoring and complaint recording procedures to allow for adaptive management of blasting events'.
•The decision of the EPA to not assess the proposal was subject to a Ministerial review and the Appeals Convenor's report addressed the issue of blasting. It concluded 'the management and monitoring of blasting proposed by the proponent being consistent with appropriate standards that can be given effect through the Shire of Harvey's Extractive Industry Licence, the EPA maintained its view that the potential impacts are not so significant as to warrant formal assessment and that the potential impacts can be effectively dealt with through other statutory decision making processes'.
Thus the Tribunal finds that blasting as proposed is acceptable subject to appropriate conditions being applied.

Dust and water management

Mr Cullity, Dr Krone and Woolkabunning Kiaka Incorporated raise concerns in regard to the potential impacts of the proposed development in terms of dust and surface and subsurface water management.
In the report prepared by AQ2, concerns are expressed over the lack of a water balance for the quarry operation and limited scientific data or assessments to support the availability of water resources for dust suppression.
The development proposal includes a Dust Management Strategy. Water for dust suppression will be sourced from the sump in the base of the pit when available with additional water sourced from the large farm dam in the old clay excavations on the north of Lot 501 when required. The volume of water collected in the pit will increase as the pit is enlarged and activities timed where possible in winter months to reduce water requirements.
Mr Waite, the environment expert called by the respondent, essentially accepts the outcome of the assessment by the EPA that '[t]he quarry is relatively small in scale and the proposal can be designed and regulated to minimize impacts from storm water and dust'.
Mr Cullity, Dr Krone and Woolkabunning Kiaka Incorporated raise broader concerns with water management which included:
•impact on the Roeland Village Reservoir including sedimentation; and
•impact on surface and sub-surface water.
The AQ2 consultant report, provided in support of the s 242 submissions, expresses concerns over the limited assessment of potential water quality impacts and the design of surface water management measures.
In contrast, the environmental experts in their joint witness statement agree that the environmental risks and impacts, including blasting, from the proposal of a small quarry could be readily managed by normal 'best practice' quarry management.
In December 2013, the DoW advised the Shire that 'DoW has determined that the catchment area affected by the proposed new quarry is not significant and is unlikely to impact on water quantity'.
Importantly, the DoW subsequently reviewed the Water Management Plan put forward by the applicant. While the Department was initially primarily concerned with the high risk presented by the operations to downstream values, it noted that the Evacuation and Rehabilitation Management Plan (Stephens report) outlines site management principles to prevent deleterious impacts from the proposed quarry and processing area and that '[i]n broad terms, DoW accepts the adequacy of Stephens' assessment of the area, there being no obvious concerns regarding the hydrogeology within the area of the proposed hard rock quarry'. It also stated that 'DoW also acknowledges as appropriate Stephens' water management principles' although it noted it understood DER will likely require site specific designs for stormwater management in any Works Approval application made.
In September 2015 and following a meeting with Dr Krone, DoW advised DER that '[w]ith respect to water matters, it is the view of DoW that provided water shed issues are addressed in any works approval/licence granted, impacts to water courses will be minimised' and that '[in] the case of granite extraction, there is little or no opportunity for runoff impacts'.
On that basis the Department advised that 'DoW is satisfied that the SoH/DER planning consent/works approval/licensing process can proceed along normal lines'.
In view of the extent of investigations undertaken, particularly by the relevant State government agencies and the extent of liaison between them, the Tribunal is satisfied that the potential impacts of the development in terms of both dust control and water management are, subject to appropriate planning conditions and compliance with the relevant statutory works/licencing procedures, acceptable.

Potential impact on birds and fauna

In his witness statement Dr Krone expresses concern that the noise, dust and vibrations from the quarry will have an impact on his property through 'driving birds and fauna away from the area'.
In his submission Dr Krone includes correspondence from Birdlife Western Australia to the Shire. This document addresses concerns in regard to potential impacts on Black Cockatoo habitat.
The report prepared by Cape Environmental Pty Ltd for Glen McLeod Legal, representing Mr Cullity, the Indigenous Land Corporation and Woolkabunning Kiaka Incorporated, concludes that there has been no assessment of vegetation, fauna or fauna habitat on the proposed quarry site. While the report suggested that 'there may be several threatened species present on or in the vicinity of the site' its primary focus appears to be on the potential impact on Black Cockatoo habitat.
In that regard it recommends that the proposal be referred to the Commonwealth Department of Environment. The report also notes that the proponent is likely to require a Clearing Permit under the EP Act.
Mr Stephens, the environment expert for the applicant, provided a detailed response to the Cape Environmental Pty Ltd report which was in evidence.
More relevantly, the joint expert witness statement from the environmental experts agrees the following:
…
7.We agree that an Environmental Protection Clearing Permit will be required from the Department of Environment Regulation. We see little or no reason why such a permit will not be issued.
8We agree that the application for the clearing vegetation should be referred to the Commonwealth or the Commonwealth contacted under the EPBC 1998 Legislation with respect to black cockatoos. We agree that the potential impacts on black cockatoos will be small and that the proposal is unlikely to be assessed by the Commonwealth[.]
There is no evidence before the Tribunal to substantiate Dr Krone's contention that the development will drive birds and fauna away from the area, or more particularly from his land. Much of Dr Krone's landholding abutting the area of Lot 501 where the quarry is to be located is cleared. This is particularly the case for the land adjacent to the processing area.
In this context, given that any required approvals relating to black cockatoos are addressed, the Tribunal finds that any potential impacts on birds and fauna on adjacent landholdings are acceptable.

Potential interference with cattle

Dr Krone submits that:
The existence of the quarry will sterilize a valuable part of my grazing land. It should be apparent that some of my best cleared land is within the 1000 metre buffer and close to the quarry. I will not subject my livestock or the flora and fauna on my land to the noise of explosions, jack hammering, three processing plants, truck and machinery movements. I will need to shift them to my other lands which will in turn put pressures on those other areas.
The evidence from the acoustic experts is that there are a range of mechanisms to address the noise associated with the processing operation to ensure compliance with the relevant provisions of the Noise Regulations.
The real issue is therefore the issue associated with the blasting operation. The Tribunal notes in that regard that it was agreed by the acoustic experts that there are no relevant statutory requirements which seek to protect cattle from the potential impacts of blasting.
Mr Stephens advises that:
There is a more recent area of analysis which which is evolving or has been evolving the last five to 10 years looking at the impact of blasting on on surrounding animals. (T:39; 09.02.17)
And that:
There has been some I suppose the initial area where this research was developed was in the context of military bombing ranges and the native species in those ranges startle effect, things like that. Over that that research shows that through regular repeated bombing, the native animals actually habituated to that and they sought out that environment simply because there was a severe dearth of other things happening there. It was a pristine natural environment except for the fact that all hell breaks loose on a weekly or a monthly basis. So you do find that animals can habituate to that but where you've got one, two, four, 10 events per year, that's in an area of research which is still in its infancy. (T:3940; 09.02.17)
Given both the lack of any relevant statutory requirements, the infrequent nature of the blasting operation and the potential for Dr Krone to move livestock for those restricted periods of time the Tribunal finds there is no evidentiary basis for an adverse finding in regard to the potential impact on cattle.

Potential impacts on Aboriginal heritage

The submission prepared by Glen McLeod Legal on behalf of Mr Cullity, the Indigenous Land Corporation and Woolkabunning Kiaka Incorporated raised concerns over potential impacts of the proposed development on Aboriginal cultural heritage.
The witness statement of Mr Wallam, the CEO of Woolkabunning Kiaka Incorporated, while it raises both water quality and amenity concerns, does not raise the issue of impact on Aboriginal sites.
The Evacuation and Rehabilitation Management Plan submitted with the application addresses the issue of Aboriginal sites. It notes the applicable legislation, namely the Aboriginal Heritage Act 1972 (WA), and makes the following comments:
•Should any evidence of early aboriginal occupation be uncovered, development will be stopped pending an assessment by a recognised consultant.
•If the site is confirmed as a site under the provisions of Section 15 of the Aboriginal Heritage Act 19721980 and Amendments operations will cease pending relevant negotiations.
On 17 August 2016, advice was provided by the Department of Aboriginal Affairs to the Indigenous Land Corporation.
This correspondence advised that 'It is understood the proposed granite quarry is not within the mapped area of reported Aboriginal places DAA 16713 or DAA 16715'.
The same correspondence did note that DAA 16713 (Collie River Waugal) was scheduled to be reassessed and that as the quarry is adjacent to tributaries which feed into the Collie River concerns exist that the activities of the quarry may impact the water quality of the river system. The latter issue has however been addressed in some detail by the DoW.
In view of the evidence before it the Tribunal finds that the measures in place to protect Aboriginal sites either in the locality, or on Lot 501, should any be found to exist, are acceptable.
More broadly in regard to the amenity question, the Tribunal received in evidence a joint expert witness statement from the planning experts, Ms Morgan called by the respondent and Mr Stephen Allerding called by the applicant.
The experts agree that 'there will not be an unacceptable impact on the amenity of the locality or adjoining properties' and that 'the proposal is a matter that is capable and appropriate for approval with the provision of appropriate planning conditions noting also that the Proposal will be subject to separate Environmental Conditions under a Works Approval'.
In applying the additional relevant provisions of cl 67 of Sch 2 of the LPS Regulations, the Tribunal finds:
•relying on the joint statement of the planning experts in regard to subclause (m) (compatibility with its setting) and sub-clause (n) (the amenity of the locality), there will not be an unacceptable impact on the amenity of the locality or adjoining properties;
•relying on the joint witness statements of the environmental experts that the proposal can be adequately controlled by the DER and the view of DoW that, provided that water shed issues are addressed in any works approval/licence granted, impacts to water courses will be minimised, the proposed development complies with subclause (o) (effect on natural environment and water resources);
•subclause (w) (the history of the site) is relevant given the proposed quarry is located on the site of an historic quarry on a lot currently being used for gravel extraction; and
•relying on the advice of the Department of Mines and Petroleum, the proposed development complies with subclause (x) (impact of the development on the community as a whole).
For the detailed reasons set out above the Tribunal finds that the proposed hard rock quarry at Lot 501 Coalfields Highway warrants support. Clearly, however, such support will be subject to a wideranging set of conditions which we now address.

Conditions

While a range of 'Without Prejudice' conditions were agreed between the parties a number are in dispute therefore requiring determination by the Tribunal.
In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the tests for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury) in the following terms:
A condition attached to a grant of planning permission will not be valid therefore unless:
(1)The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
(2)The condition reasonably and fairly relates to the development permitted.
(3)The condition is not so unreasonable that no reasonable planning authority could have imposed it.
Given that, of the twelve contested conditions, the parties provided alternative wording for eight conditions and in the four other contested conditions the applicant argued the matters covered with were already dealt with in other conditions, neither the first or second legs of the Newbury test are at issue.

Thus the test to be applied in any determination on conditions is the third Newbury test '[t]he condition is not so unreasonable that no reasonable planning authority could have imposed it'.
In addition in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, Clarke JA (with whom Meagher JA agreed) held at 739 as follows:
… The principle that a valid consent must be final and certain is established and was accepted by the parties. The point was expressed by Wells J in terms which, with respect, I find persuasive in Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68. His Honour said:
'… For this purpose, it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect.'

Conditions 2 and 3

We reject conditions 2 and 3 put forward by the respondent.
Essentially the Shire is seeking in these conditions to establish a requirement for a Native Tree Protection Plan subject to the approval of the Shire.
The Shire's 'objective for these two conditions is to minimise the amount of clearing of native vegetation and to protect the native vegetation which remains' (T:77; 09.02.17).
In SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22, the Tribunal at [137] [138] argued:
Draft conditions 11(a) - 11(d) seek an Environmental Management Plan and related steps to ensure compliance with the reports made thereunder. The Shire's motivation was to further protect 'environmental and amenity matters'. …
By reason of the Tribunal's acceptance above of the general principle in SITA v Greater Dandenong, which extends to any specialist government regulatory agency (see at [27]), subject to what follows, we decline to impose these 'parallel' conditions[.]
For these reasons the Tribunal accepts the condition 2 put forward by the applicant which reads as follows:
The applicant must:
(a)lodge with the Shire a plan showing the location of native trees which are near to places where activities will take place pursuant to this approval and identifying any native tree to be cleared for the purposes of the development;
(b)obtain a clearing permit under the Environmental Protection Act 1986 (WA) in respect of any native vegetation to be cleared on Lot 501 for the purposes of the development; and
(c)carry out the development in accordance with the clearing permit.

Conditions 4 and 12

In condition 12 the respondent is seeking the preparation of a Dieback Management Plan subject to the approval of the Shire.
The applicant is seeking to have dieback management included in the Excavation and Rehabilitation Management Plan under condition 4.
While it is clearly agreed between the parties that dieback management is a relevant consideration which requires to be addressed, the respondent brought no evidence which suggested that dieback was a substantive concern which would warrant it being given individual attention over and above issues such as noise and dust management which were the subject of considerable evidence and are dealt with in the Excavation and Rehabilitation Management Plan. For these reasons, the Tribunal accepts that dieback management is more appropriately dealt with in the context of condition 4.

Conditions 5, 17 and 19

The substantive issues arising between the parties was the timing associated with the clearing of conditions.
The respondent seeks clearance prior to the issue of an Extractive Industry Licence under the Shire of Harvey Extractive Industries Local Law 2007 (Local Law) while the applicant submits compliance should be required prior to the commencement of extraction of processing operations.
The respondent submits that 'all things necessary for extraction to commence … should all be done, in place, compliant, before the extractive industry licence is issued, so the licence is literally the document which then allows you to go on site and start digging up the ground' (T:81; 09.02.17).
The applicant submits that compliance 'should be required prior to commencement of operation of the quarry'. It was conceded that 'some of these things would have to be addressed in as part of the extractive industry licence' (T:79; 09.02.17).
The Local Law in Pt 2 requires three copies of a works and extraction programme to be submitted in applying for an Extractive Industry Licence. This includes requirements for drainage, the minimisation of water course siltation and compliance with the Noise Regulations. In this context it is logical that both the Storm Water Management Plan (condition 5) and the Noise Management Plan (condition 17) be submitted prior to the issue of the Extractive Industry Licence. The construction of bunds (condition 19) runs counter to the 'start digging' submission of the respondent and it is not appropriate to require construction prior to the issue of the Extractive Industry Licence.
It is noted that some less substantive issues with conditions 5, 17 and 19 are dealt with below.

Condition 5

Condition 5 deals with the requirement for a Storm Water Management Plan and the only issues between the parties are a suggestion by the applicant to make the wording more specific in two subclauses while the respondent is seeking details on the volume of water to be treated prior to its use for dust suppression.
The Tribunal accepts the submissions of both parties; those of the applicant in that they increase the certainty of the condition and that of the respondent in that dust suppression is clearly an important issue and, while the Dust Management Plan deals with sourcing, it does not deal with quantities.

Condition 10

Condition 10 provides parameters for blasting which go beyond the Blast Management Plan.
At issue between the parties are blasting times, the specification of weather conditions, notification of adjoining land owners and the number of blasts per year.
In regard to blasting times the respondent is proposing 11 am to 2 pm while the applicant is seeking 10 am to 3 pm to provide additional flexibility. The Local Law provides for blasting between 8 am and 5 pm on Mondays to Fridays and the respondent concedes that '[e]xtending it to between 10 and 3 pm isn't going to make any difference to the assigned level, or the criteria under noise regulations (T:85; 09.02.17). In this context the Tribunal finds for the applicant on this point.
In specifying weather conditions the Tribunal accepts that extending the applicant's proposed wording 'when weather conditions are suitable' to a more specific designation would improve the certainty of the condition. However, while referral to both temperature inversions and wind condition is appropriate, limiting the condition to south west winds is too restrictive.
In regard to notification the applicant in the hearing advised that it accepts the seven days' notice provision as submitted by the respondent.
In regard to the number of blasts the Blast Management Plan states:
… It is anticipated that up to 4 blasts will be used per year, at least initially. When testing and opening the pit there may be several more smaller blasts.
However when the faces have been formed the number of blasts per year may reduce to two.
At the hearing the applicant submitted it did not want the number of blasts limited.
As the proposal under review expressly specified up to four blasts this constraint is appropriate subject to rewording the respondent's condition to refer to four major production blasts per year.

Condition 15

Condition 15 relates to operating hours, with the respondent seeking to constrain operating hours generally and the applicant seeking to constrain only crushing, screening and excavation activities.
The substantive issues in this review were the potential amenity impacts on adjoining properties. The considerable evidence provided in this regard relates to the operations of excavation, crushing and screening (given that blasting is dealt with elsewhere). The respondent's concern is that limiting the condition would establish an undesirable precedent and 'trucks can roll in and out' (T:92; 09.02.17). Given the rural General Farming zoning of the Site, the limited number of truck movements and the lack of any residences in close proximity to the Site, the Tribunal finds for the applicant on this point. We note that there is no need to refer to the noise regulations which apply under other legislation in any event.

Condition 16

The respondent seeks a further condition on blasting in regard to ground vibration. The condition proposed is a statutory requirement under the Noise Regulations and applies in any event. The condition is unnecessary.

Condition 17

Condition 17 relates to a Noise Management Plan. The substantive issue between the parties is the respondent's submission that monitoring data should be available 'online' in real time.
Evidence on this condition was provided by the expert witnesses. In summary that evidence is that, while such a monitoring regime was expensive, it was possible. More importantly, the evidence is that it is generally applied to construction projects and to major developments such as the Alcoa operation in Pinjarra. There was no evidence it has ever been applied to a quarry. In this context and given that the proposed quarry is small by industry standards, this condition is inappropriate and the Tribunal finds for the applicant on this point.

Condition 19

Having dealt with the timing issue above the applicant has suggested that the construction of bunding to address noise (wording agreed between the parties) would be better placed in condition 17 which addresses the Noise Management Plan. The Tribunal accepts this submission.

Condition 21

The respondent seeks a condition that no storage of bulk hydrocarbons should occur on site and no 'major vehicle or machinery repairs or maintenance' is to occur on site.
The Site is a large property within a General Farming zone. In this zone many farmers would both store hydrocarbons on site and undertake the repair and maintenance of farming equipment.
The proposed condition is not appropriate as the storage of hydrocarbons is, in any event, regulated through other legislation. A restriction on repair and maintenance, given both the size of the equipment involved and the fact that it already occurs in the zone, is unreasonable.

Condition 22

The respondent seeks to time limit the approval to five years. The submission of the respondent on this condition was as follows:
The [S]hire's standard practice is to grant approval for a quarry for a term of five years for planning approval purposes. Quarries are unusual in that they are emissionproducing industries which have external impacts, potentially noise, dust, truck movements, water, etcetera. What is seen to approve is based on the available information and evidence at the time the decision is made, obviously, but what the modelling or predictions say is likely to occur may not, in fact, occur, and the approval relies in this case substantially on the adequacy of the management measures which are proposed by the proponent.
So if aspects of the development prove in time to, in fact, be problematic, a difficulty arises because a development approval is a oneoff approval. It's not flexible enough to come back if you messed up the first time. The applicant has got their approval. So the remedy for that, from the shire's perspective, has always been to grant a limited term, five years, to enable review of performance after that period of time. We say that excuse me five years is a suitable and appropriate period. (T:105106; 09.02.17)
In support of this submission the respondent drew on Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212 (Keysbrook) and PMR Quarries Pty Ltd and City of Mandurah [2010] WASAT 87 (PMR Quarries).
However, the Tribunal is of the view that these can be differentiated from the application under review.
In Keysbrook at [20] the Tribunal stated:
… It is the Tribunal's view that a period of eight years is a suitable term for both development approval and extractive industry licensing purposes. This is based upon the evidence which suggests two years for the preliminary work, five years for the extraction phase and a further one year for any contingencies. In the Tribunal's view, this is a reasonable period for the life of the operation.
The evidence in that matter established that the extraction phase would comprise a five year period; the evidence in the current review is that the extraction phase would comprise a 20 year period.
In PMR Quarries at [96] the Tribunal stated:
An eight year period, although relatively lengthy, is however not inconsistent with a rezoning and development process for the subject land as it moves towards 'Rural Residential' status. As the current development will be carefully staged and managed, the impact upon third parties will be relatively low, certain and sequential, and also be capable of being monitored over that period of time.
The evidence in that matter was that the locality was in a transition towards 'Rural Residential' status. In the current review no evidence is provided that the locality of the Site is undergoing such a land use transition although it is clear that the proposed development is capable both of being monitored and subject to effective remedial response should any issues arise during the approval period.
For these reasons, the Tribunal supports the fifteen plus five years condition suggested by the applicant.

Conclusion

The Tribunal finds that, in the context of the relevant statutory and policy provisions, the use is acceptable on the Site.
More substantively, in view of the issue raised by the respondent in regard to blasting, the Tribunal finds that the management of the blasting operation by way of conditions would not leave open the possibility that development carried out in accordance with the consent and conditions will be significantly different from the development for which the application is made.
For these reasons, and in weighing all the evidence before it in this review, the Tribunal finds that the proposed development warrants support subject to the comprehensive set of conditions dealt with above.

Orders

For the reasons set out above:
1.The application for review is allowed.
2.The decision made by the respondent on 18 October 2016 to refuse the proposed Extraction of Granite from Lot 501 Coalfields Highway in accordance with application nos 13/29601 and 14/11545, submitted by Landform Research is set aside and a decision is substituted that development approval is granted under the Greater Bunbury Region Scheme and the Shire of Harvey District Planning Scheme No 1 for the proposed development subject to the following conditions:
1.The extraction (including blasting) and processing of hard rock may not commence until:
(a)the applicant has obtained a licence to extract hard rock from Lot 501 Coalfields Highway, Wellington (Lot 501), pursuant to the Shire of Harvey Extractive Industry Local Law 2007; and
(b)an upgraded access to Lot 501 from Coalfields Road has been designed and constructed to the requirements of Main Roads WA.

2.The applicant must:
(a)lodge with the Shire a plan showing the location of native trees which are near to places where activities will take place pursuant to this approval and identifying any native tree proposed to be cleared for the purposes of the development;
(b)obtain a clearing permit under the Environmental Protection Act 1986 (WA) in respect of any native vegetation to be cleared on Lot 501 for the purposes of the development; and
(c)carry out the development in accordance with the clearing permit.

3.Unless required by law or any other condition of this approval, the development must at all times comply with:
(a)the Blast Management Plan (Landform Research, March 2014);
(b)the Water Management Plan (Landform Research, December 2015);
(c)the operational procedures and commitments set out in the Excavation and Rehabilitation Management Plan (Landform Research, March 2014) with respect to:
(i)visual management (section 5.1);
(ii)noise management (section 5.2);
(iii)dust management (section 5.3);
(iv)dieback management (section 6.4);
(v)weed management (section 6.5); and
(vi)water monitoring and sampling (section 5.4.3).

4.A best practice Storm Water Management Plan (SWP) is to be lodged with the Shire for approval (on advice from the Department of Water) prior to the grant of an Extractive Industry Licence. The SWP is to include the following elements:
(a)any release offsite will need to achieve the requirements of the Department of Water's Water Quality Guidelines. This release may need to be controlled, prior to overland flow and before release to the main tributary to the south;
(b)provision of appropriate buffers to all internal waterways and natural drainage lines that feed the major tributaries of the Collie River and the Collie River itself;
(c)demonstration that the proposed detention basin at the processing area can provide sufficient capacity for collection and storage of stormwater and seepage, to provide sufficient time for treatment, prior to controlled release or overflow;
(d)provision of details of the expected volume of water that will be captured within the quarry and the expected volume of water that will be required to be treated to a suitable standard for its next use (e.g. dust suppression, release to environment);
(e)provision of details of the capacity of the treatment basins (sediment trapping facilities) and outline how they will provide suitable treatment and treatment time before next use;
(f)water quality is to be consistent with Department of Water requirements, prior to any release from the property;
(g)an internal access road to be constructed between the operation and the processing area to the satisfaction of the Executive Manager of Technical Services and with consideration for the Department of Water 'Water Quality Protection Note 44 - Roads near sensitive water resources';
(h)proposed water monitoring parameters;
(i)site drainage is to aim to separate natural runoff from water generated in active areas of quarrying and processing operations;
(j)stormwater management at the quarry site is to provide for the collection, storage and disposal of water;
(k)stormwater may be diverted from the site if it is not contaminated, to minimise the amount of water that needs to be treated or retained; and
(l)the project site is to be considered as a number of individual 'catchments', with each catchment having design criteria that reflect the level of risk.

The development must at all times comply with the approved SWP.
5.Notwithstanding anything in the Water Management Plan and the approved SWP, no water may be discharged from the quarry pit area without the prior approval of the Shire (on advice from the Department of Water).
6.All soil and overburden disturbed during the development must be reused on Lot 501, and may not be removed from the site.
7.The quarry shall be progressively rehabilitated in accordance with the Closure and Rehabilitation Program contained in the Excavation and Rehabilitation Management Plan (Landform Research, March 2014), and in accordance with the following requirements:

(a)revegetation of the steep slopes is to be at least at a density of at least 10 trees per 100m², in addition to 20 local provenance shrubs;
(b)revegetation of disturbed areas no longer required is to be undertaken annually;
(c)rehabilitation/revegetation is to be of a standard that achieves at least a similar vegetation coverage to that of the predisturbance native vegetation; and
(d)rehabilitation of each stage is to be monitored for a period of three years, or until the Shire confirms the rehabilitation has met the establishment and sustainability criteria, whichever is later.

8.A reinstatement bond of $5,000 per hectare is to be provided to the Shire prior to the issue of an Extractive Industry Licence. The Shire may:
(a)call on the bond for the purpose of carrying out or maintaining rehabilitation work required by the Closure and Rehabilitation Management Plan, where that work has not been satisfactorily carried out by the applicant;
(b)with one week's written notice to the applicant enter Lot 501 for the purpose of carrying out or maintaining the rehabilitation work; and
(c)retain the bond and/or enter Lot 501 in accordance with the preceding paragraph for three years after the expiration of this approval.

9.In addition to the requirements of the Blast Management Plan referred to in condition 3(a) above, blasting is subject to the following conditions:
(a)all drilling equipment is to be fitted with noise suppression features and be regularly checked to ensure compliance with the requirements of the Mines Safety and Inspection Act 1994 (WA);
(b)no explosives are to be kept on site;
(c)suitably qualified consultants will monitor each blast and provide written documentation reporting on each blast to the applicant;
(d)the blast holes are to be located and designed to produce the best outcome with the least impact;
(e)blasting must take place between 10 am and 3 pm;
(f)blasting must only take place when weather conditions are suitable, such that temperature inversions in the atmosphere are avoided and wind conditions are appropriate;
(g)notification is to be provided to all adjoining landowners by email and text, and by email to the Shire at least seven days prior to each blast; and
(h)major production blasts shall occur not more than four times per year.

10.Stockpiles are to be located within the approved areas and kept to a maximum height of nine metres to avoid visual impact and/or material wind drift.
11.The quarry and processing areas must be located in the respective places shown in the 'Contour and Site Survey of Proposed Quarry Lot 501 Coalfields Highway Roelands', Plan E361201B at Figure 5 of the Excavation and Rehabilitation Management Plan (Landform Research, March 2014).
12.The applicant is to have the approved quarry and processing area boundaries surveyed and pegged by a suitably qualified surveyor, with the location of such pegs to be confirmed by the Shire prior to the issue of an Extractive Industry Licence. The pegs are to remain in place for the duration of the operation.
13.Crushing, screening and excavation activities are restricted to the hours between 7 am and 5 pm Monday to Saturday with no extraction to take place on Sunday or public holidays.
14.The applicant must lodge a Noise Management Plan with the Shire for approval prior to the grant of an Extractive Industry Licence. In addition to the operational procedures and commitments set out in section 5.2 of the Excavation and Rehabilitation Management Plan (Landform Research, March 2014) with respect to noise management (see condition 3(c)(ii) above), the Noise Management Plan must set out how the development can be carried out at all times in compliance with the applicable assigned levels under the Environmental Protection (Noise) Regulations 1997 (WA) and in particular must include:
(a)that only broad band reversing beepers will be used on vehicles driven on Lot 501 in the course of the development;
(b)identification of the proposed location of the crushing and screening plant;
(c)construction of the four metre high bund to the east of the processing area (as shown in the attached plan titled 'Noise bunds for processing area and pit' dated 24 January 2017 (Bund Plan)), before the commencement of extraction of extraction or processing operations;
(d)construction of all bunds necessary to achieve compliant noise levels on the western boundary, before the commencement of extraction of extraction or processing operations;
(e)construction of the bunds on the western side of the quarry and processing area as shown in the Bund Plan, in the event a dwelling is constructed on Lot 500 in accordance with the development approval dated 27 April 2016; and
(f)monitoring of noise to be carried out following commencement of extraction and processing operations to demonstrate compliance with the applicable assigned levels.

15.The development must be carried out in accordance with the approved Noise Management Plan.
16.The applicant is to engage a suitably qualified independent expert approved by the Shire to carry out an annual audit of compliance of the conditions of planning consent and which is to include all matters referred to in the 'Monitoring and Reporting' section of the Excavation and Rehabilitation Management Plan (Landform Research, March 2014). The audit must be submitted to the Shire by no later than 31 January of each calendar year.
17.Any refuelling activities must be undertaken in accordance with the Department of Water's Water Quality Protection Note - Toxic and Hazardous Substance Storage and Use. Maintenance, servicing and fuel storage are to be completed using best practice and Department of Water Guidelines.
18.This approval is valid for:
(a)a period of fifteen years from the date of commencement of the licence referred to in condition 1(a) above (Initial Period), and
(b)a further period of five years following immediately upon the expiry of the Initial Period, provided that the Shire is satisfied, by reference to the last of the audits referred to in condition 16 above submitted during the Initial Period, that the conditions of this planning consent have been complied with by the applicant.

19.In this approval the 'applicant' includes the owner of Lot 501 and every person or entity carrying out the approved development from time to time.

I certify that this and the preceding [221] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT