CAVERSHAM PROPERTY PTY LTD and SHIRE OF SERPENTINE*JARRAHDALE
[2006] WASAT 173
•28 JUNE 2006
CAVERSHAM PROPERTY PTY LTD and SHIRE OF SERPENTINEJARRAHDALE [2006] WASAT 173
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 173 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:145/2006 | 14 JUNE 2006 | |
| Coram: | MR J JORDAN (MEMBER) | 28/06/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld in part | ||
| B | |||
| PDF Version |
| Parties: | CAVERSHAM PROPERTY PTY LTD SHIRE OF SERPENTINEJARRAHDALE |
Catchwords: | Town planning – Development – Extractive Industry – Excavation of sand – Conditions of approval – Operating hours – Screening vegetation – Rehabilitation – Environmental offset – Vegetation link with conservation category wetland – Buffer to revegetated area – Fencing revegetated area – Conservation covenant – Heavy vehicles on school bus routes |
Legislation: | Environmental Protection Act 1986 (WA), s 38 Environmental Protection (Noise) Regulations 1997 (WA) Metropolitan Region Scheme, cl 32 State Administrative Tribunal Act 2004 (WA), s 31(1), s 31(3) Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 6.6.1 |
Case References: | Nil Nil |
Orders | On the application determined by Member James Jordan on 28 June 2006, it is ordered that:,1. The application for review be allowed in part.,2. The conditions of approval imposed by the Shire of Serpentine-Jarrahdale in its approval decision of 22 May 2006 be amended as follows:,2.1 Condition 2 be amended to read:,"Operating hours are restricted to 6am to 5pm Monday to Saturday and are not permitted to occur on Sundays and Public Holidays. Operations include, but are not limited to, the movement of all vehicles (bulldozers, front end loaders, water trucks, gravel trucks and fuel trucks) involved in the extractive industry. This includes external contractor's vehicles and those not specifically designated as Caversham Property Pty Ltd's property.",2.2 By consent condition 19 be deleted and replaced with a new condition stating:,"19. The Applicant shall use its best endeavours to minimise the visibility of all works including stockpiles from King or Coyle Roads.",2.3 By consent, condition 25 and condition 26 be deleted and be replaced with a new condition 25 to read:,"25. The landowner is to maintain a 20 metre buffer between the top of all quarry pits and the property boundary and indigenous vegetation within this buffer is to be protected where possible, including where safe and practical the diversion of fire breaks around existing indigenous vegetation. Planting of screening vegetation is to be undertaken in the winter of 2006 along the northern boundary of the land the subject of this approval and along King Road, together with supplementary planting along Coyle Road, as identified by the blue lines on the attached plan date stamped 13 June 2006 entitled 'Screening Buffer Revegetation Plan'.",2.4 There be no condition 26.,2.5 By consent, conditions 27, 28 and 29 be deleted and replaced with two new conditions as follows:,"27. Stages 1 and 2 are to be rehabilitated and revegetated within one year from the completion of each respective stage.,28. Stages 3 to 6 are to be rehabilitated and revegetated within two years from the completion of each respective stage.",2.6 There be no condition 29.,2.7 By consent, condition 32 be deleted and replaced with a new condition:,"32. A 50 metre buffer is to be maintained around the wetlands adjacent to the excavation area on Lots 713, 200, 441 and 1242 as depicted on the attached Figure 5 date stamped 13 June 2006.",2.8 Condition 33 be deleted and replaced with a new condition to read:,"33. Prior to the commencement of excavation activities, the wetlands adjacent to the excavation area on Lots 713, 200, 441 and 1242 are to be fenced to protect the wetlands from grazing and other activities. Such fence to consist of post and wire or post and rail and to be located on the external edge of a 50 metre buffer area as depicted on the attached Figure 5 date stamped 13 June 2006.",2.9 Condition 34 be deleted and there be no condition 34. ,2.10 Condition 35 be deleted and there be no condition 35.,2.11 Condition 56 be deleted and there be no condition 56.,3. The respondent file and provide to the applicant by 7 July 2006 a schedule of all the conditions of approval imposed on the development as amended by these orders. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CAVERSHAM PROPERTY PTY LTD and SHIRE OF SERPENTINEJARRAHDALE [2006] WASAT 173 MEMBER : MR J JORDAN (MEMBER) HEARD : 14 JUNE 2006 DELIVERED : 28 JUNE 2006 FILE NO/S : DR 145 of 2006 BETWEEN : CAVERSHAM PROPERTY PTY LTD
- Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords:
Town planning – Development – Extractive Industry – Excavation of sand – Conditions of approval – Operating hours – Screening vegetation – Rehabilitation – Environmental offset – Vegetation link with conservation category wetland – Buffer to revegetated area – Fencing revegetated area – Conservation covenant – Heavy vehicles on school bus routes
Legislation:
Environmental Protection Act 1986 (WA), s 38
Environmental Protection (Noise) Regulations 1997 (WA)
(Page 2)
Metropolitan Region Scheme, cl 32
State Administrative Tribunal Act 2004 (WA), s 31(1), s 31(3)
Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 6.6.1
Result:
The application for review is upheld in part
Category: B
Representation:
Counsel:
Applicant : Mr M Flint with Ms A Patterson
Respondent : Mr D Nicholson
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The Shire of Serpentine-Jarrahdale granted Caversham Property Pty Ltd conditional planning approval for the excavation of sand from part of Lot 200 and Lot 441 Coyle Road, and part of Lot 713 and Lot 1242 King Road, Oldbury.
2 Caversham Property Pty Ltd applied to the Tribunal for review of 12 of the 56 conditions imposed.
3 The Shire imposed a condition restricting operations to a starting time of 7 am. The Tribunal determined that work could start at 6 am because the three other nearby sandpits had no restrictions on working hours and there are conditions in place for breach of the noise regulations at any time.
4 The Tribunal endorsed new conditions recommended by the parties for a 20 metre vegetation buffer around the site, for the screening of the works and for the rehabilitation of each stage of sand excavation.
5 As part of its application, Caversham Property Pty Ltd proposed, as an environmental offset, the planting of vegetation links between remnant vegetation and conservation category wetlands just to the south of the quarry site. The Tribunal has endorsed conditions requiring a 50 metre buffer around the resulting vegetation strip, and the fencing of those buffers to ensure that the vegetation can be established and protected.
6 The Tribunal did not support conditions requested by the Shire of Serpentine-Jarrahdale that required additional rehabilitation of the conservation category wetland and the land, and that the wetland be the subject of a conservation covenant. This was because no environmental offset was required for the conservation category wetland as there was no impact on it from the development.
7 The final condition in dispute required that trucks from the sand pit stay off two of the local rural roads at the times the roads were being used by school busses. The Tribunal found that the condition would be too impractical to apply given the vagaries of traffic flows and the need for the trucks to stay off the roads for too long. There was also no evidence that the many trucks already on rural roads created any problems for school buses. It was not clear how this condition could ultimately be universally applied given the network of rural roads used by school buses
(Page 4)
- and the volumes of truck traffic in the Shire of Serpentine-Jarrahdale. This condition was not therefore endorsed by the Tribunal.
8 The overall effect of the Tribunal's decision was that the application for review of the conditions has been upheld in part.
Introduction
9 Caversham Property Pty Ltd (applicant) applied to the Shire of Serpentine-Jarrahdale (respondent) on 14 December 2005 for planning approval for an extractive industry, being the excavation of sand, at part of Lot 200 and Lot 441 Coyle Road and part of Lot 713 and Lot 1242 King Road, Oldbury (the subject land). The subject land is zoned "Rural" under both Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2) and the Metropolitan Region Scheme (MRS).
10 The sand would be excavated by a front end loader from a sand ridge that runs from north-east to south-west across the middle of the land and loaded onto trucks. On leaving the site, the trucks would travel about 4 kilometres north on King Road to Thomas Road then turn east. After travelling about 8.5 kilometres on Thomas Road, the trucks would turn south on Hopkinson Road and travel between 1.5 kilometres and 3.5 kilometres to a residential subdivision the applicant is developing. The empty trucks would then return along this route for another load of sand. Mr Matthew Cousins, a property analyst for the applicant, gave evidence that virtually all of the sand would be used in the development of this subdivision and most of it within the first year and the remainder within five to 10 years.
11 The application had not been determined by the respondent and was deemed refused on 13 February 2006 pursuant to cl 6.6.1 of TPS 2.
12 By reason of a cl 32 notice under the MRS, the application required the approval of the Western Australian Planning Commission in addition to that of the respondent. It is understood that approval has been granted.
13 The application was referred to the Environmental Protection Authority (EPA) pursuant to s 38 of the Environmental Protection Act1986 (WA) (EP Act)by both the applicant and the respondent because of the presence on the land of a conservation category wetland. The EPA wrote to both parties in late February 2006 advising that it had decided not to subject the proposal to a formal environmental impact assessment process and that advice as to the environmental aspects of the proposal
(Page 5)
- would be provided. The respondent received that advice on 21 April 2006.
14 At a directions hearing of 12 May 2006, the Tribunal invited the respondent to make a decision on the application, as provided for under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The respondent determined the matter at its meeting of 22 May 2006 and granted planning approval subject to 56 conditions.
15 As provided for under s 31(3) of the SAT Act, the applicant's application for review was then taken to be for a review of the decision of 22 May 2006. The applicant amended its grounds to have reviewed conditions 2, 19, 25 and 26, 27 to 29, 32, 33, 34, 35 and 56 of the conditions of approval imposed by the respondent.
16 The parties subsequently held constructive meetings and exchanged correspondence. They produced a joint statement, dated 12 June 2006 and filed 13 June 2006 (joint statement), in which they advised the Tribunal of the conditions listed for review on which they had agreed a resolution and the conditions still in dispute between them. The joint statement had two attachments, both of which the Tribunal has date stamped 13 June 2006. One attachment was titled "Screening Buffer Revegetation Plan" and the second is "Figure 5 Surrounding Land Uses Revegetation" (Figure 5).
17 The Tribunal has considered each of the conditions set out in the joint statement.
Condition 2
18 Condition 2 of the respondent's approval of 22 May 2006 stated:
"Operating hours are restricted to 7am to 5pm Monday to Friday and 8am to 5pm [sic] on a Saturday and are not permitted to occur on Sundays and Public Holidays. Operations include, but are not limited to, the movement of all vehicles (bulldozers, front end loaders, water trucks, gravel trucks and fuels trucks) involved in the extractive industry. This includes external contractor's vehicles and those not specifically designated as Caversham Property Pty Ltd's property."
19 There was no dispute that a condition on operating times be imposed. The applicant asked that the first sentence of the condition be amended to read:
(Page 6)
- "Operating hours are restricted to 6am to 5pm [sic] Monday to Saturday and are not permitted to occur on Sundays and Public Holidays …"
20 Mr Bradley Gleeson, the respondent's Executive Manager of Planning and Regulatory Services, gave evidence that the starting time in condition 2 was a precautionary step. This was a quiet rural area and there were houses within 200 metres to 350 metres. A 7 am start often meant that trucks arrived before this time and there had been complaints about early morning truck noise in the locality. Mr Gleeson said it was necessary to consider not the average of 17 truck movements per day, averaged over 10 years or even 34 per day, if the quarry life is five years as referred to by the applicant. The experience of the respondent was that there may be, at times, many times this number of movements, depending on the stage of development of the subdivision.
21 Mr Gleeson was of the view that it was too difficult to correct noise problems once a development had commenced operation. He also considered there would be a cumulative effect with the noise from other sand pits. In the absence of noise forecasts, the respondent had adopted a 7 am starting time but had allowed 5 pm closing on Saturday, instead of the usual noon so, in his view, the applicant was not disadvantaged. The respondent considered this was an amenity issue and a "pro active" approach was warranted in the circumstances. When examined, Mr Gleeson advised that he was not aware of any complaints arising directly from the operation of the sand quarries in the locality, which were marginally closer to the houses.
22 Mr Lindsay Stephens, an environmental scientist called by the applicant, referred to condition 37 imposed by the respondent, which, required compliance with the Environmental Protection (Noise) Regulations 1997 (WA) (noise regulations). Condition 39, in addition, required the production of an Environmental Management Plan to control noise on site to within legislative limits and that monitoring must occur within 28 days of commencement and continue thereafter. It was also relevant that condition 38 required machinery working on the site to have non audible warning measures. These conditions, it was argued, provided the means to adequately address noise concerns.
23 Mr Stephens also pointed out that the noise regulations did not apply to road traffic and that there were no operating time restrictions on the two sand quarries 100 metres and 300 metres to the east respectively on the opposite side of King Road or the third quarry 350 metres to the
(Page 7)
- south-west. In relation to noise control, he noted that for the quarry 100 metres to the east the only relevant condition imposed required that measures be taken to ensure that machinery complied with the noise regulations.
24 The Tribunal noted that this is a rural area where some residential users of rural lots might be concerned about noise. It is, however, a locality where there are already three operating sand quarries. The proposed sand quarry would be different from the other quarries in that it would have restrictions on its hours of operation, whereas the others have none. There was otherwise no evidence that this sand quarry would operate using methods any different from those at the three other sand quarries and from cross examination it was revealed that there were no complaints arising directly from the operation of the other quarries. The staging shows that excavation would be worked from the centre outward leaving a sand barrier between the workings and the east, south and west where houses were located.
25 A precautionary approach is perhaps warranted in circumstances where there is a perceived, but unmeasured potential risk of impact, and no means of determining that risk either immediately or within a reasonable period. In this case, there are in place conditions that require a monitoring plan and steps that could be taken if noise were to be excessive. The Tribunal has decided that condition 2 can be amended to include the operating hours sought by the applicant.
Condition 19
26 The joint submission advised that the parties had agreed that condition 19 of the respondent's approval of 22 May 2006 can be replaced with the following condition:
"The Applicant shall use its best endeavours to minimise the visibility of all works including stockpiles from King or Coyle Roads."
27 The Tribunal finds no reason to determine otherwise.
Conditions 25 and 26
28 Condition 25 of the respondent's approval required a 20 metre buffer between the top of the sand quarry and the boundary, and that the buffer be planted with screening indigenous vegetation. Condition 26 was concerned with the screen planting being established before stage 2 of the quarrying commenced.
(Page 8)
29 The parties agreed that conditions 25 and 26 be replaced with a single condition. The Tribunal has accepted the new condition, subject to there being included in the condition reference to the blue lines on the attachment "Screening Buffer Revegetation Plan" identifying the lengths of boundary to be subject to planting. The replacement condition would state:
"The landowner is to maintain a 20 metre buffer between the top of all quarry pits and the property boundary and indigenous vegetation within this buffer is to be protected where possible, including where safe and practical the diversion of fire breaks around existing indigenous vegetation. Planting of screening vegetation is to be undertaken in the winter of 2006 along the northern boundary of the land the subject of this approval and along King Road, together with supplementary planting along Coyle Road, as identified by the blue lines on the attached plan date stamped 13 June 2006 entitled 'Screening Buffer Revegetation Plan'."
Conditions 27, 28 and 29
30 Conditions 27 to 29 were each concerned with the timing of the completion of the rehabilitation and revegetation of the various stages of the development relative to the commencement of work in later stages, and the rehabilitation and revegetation of the final stage.
31 The parties agreed that conditions 27 to 29 of the respondent's approval of 22 May 2006 be replaced with the following two conditions:
"Stages 1 and 2 are to be rehabilitated and revegetated within one year from the completion of each respective stage.
Stages 3 to 6 are to be rehabilitated and revegetated within two years from the completion of each respective stage."
32 The Tribunal has no issue with the suggested replacement conditions.
Conditions 32, 33, 34 and 35
33 The application to the respondent for planning approval included a report by Landform Research entitled "Excavation and Rehabilitation Management Plan" (management plan). In addition to setting out the development being applied for, the management plan included undertakings for rehabilitation of the mined area, which is consistent with
(Page 9)
- normal environmental management requirements and for the provision of an environmental offset. In the management plan's summary, it states:
"Rehabilitation of the excavation area will be to parkland cleared with clumps of 200 trees and shrubs per hectare. In addition it is proposed to rehabilitate 2.4 hectares of vegetation linkage between existing remnant vegetation to the south of the excavate area. The vegetation linkages will link remnant vegetation on Lot 439 to the west through remnant vegetation to the conservation category wetland east of King Road and provide potential to enhance the biodiversity value of two wetland areas of conservation status that adjoin the property."
"It allows for the Environmental offsets in line with EPA Position Statement No 9 (preliminary)."
35 The EPA Position Statement No 9 "Environmental Offsets" (EPA Position Statement No 9) was published in the final form in January 2006. There was no evidence that there was any change between the draft and the final document relevant to this matter. Attached to the management plan was an earlier version of Figure 5 showing the conservation category wetland and the vegetation linkages from the western boundary to the eastern boundary of the subject land, south of the excavation area.
36 Conditions 32 to 35 were each concerned with aspects of the how the respondent considered the vegetation linkages and the conservation category wetland should be dealt with.
Condition 32
37 Condition 32 required that a 50 metre buffer be maintained between the excavation activities and the conservation category wetland, and what were termed multiple use wetlands on the subject land. Initially, the
(Page 10)
- applicant asked that it only be required to maintain a 50 metre buffer between the excavation activities and the conservation category wetland.
38 Figure 5, attached to the joint statement, shows the complete vegetation strip with the remnant vegetation, conservation category wetland and vegetation linkages. A line on Figure 5 depicts a 50 metre wide buffer both to the south of the vegetation strip and to the north, between the vegetation strip and the excavation area. The joint statement suggested an agreed condition to replace condition 32 to read (with the date of Figure 5 added by the Tribunal):
"A 50 metre buffer is to be maintained around the wetlands adjacent to the excavation area on Lots 713, 200, 441 and 1242 as depicted on the attached Figure 5 [date stamped 13 June 2006]."
39 The Tribunal has accepted this condition.
Condition 33
40 The parties did not agree on wording for condition 33. The respondent submitted that condition 33, as initially imposed on 22 May 2006, be amended to require that:
"Prior to the commencement of excavation activities, the wetlands adjacent to the excavation area on Lots 713, 200, 441 and 1242 are to be fenced to protect the wetlands from grazing and other activities. Such fence to consist of post and wire or post and rail and to be located on the external edge of a 50 metre buffer area as depicted on the attached Figure 5."
41 The applicant has proposed the following condition:
"Prior to the commencement of excavation activities, the wetlands adjacent to the excavation area on Lots 713, 200, 441 and 1242 are to be fenced to protect the wetlands from grazing and other activities. Such fence to consist of post and wire or post and rail and to be located on the external edge of the wetlands outlined in green on the attached Figure 5."
42 The advice of the EPA to the applicant on 23 March 2006, included:
"A 50 metre buffer should be maintained between the excavation activities and the adjacent wetlands, and
(Page 11)
- The adjacent wetlands should be fenced to protect the wetlands from grazing and other activities."
43 When asked by the applicant to clarify its position, the EPA advised in a letter of 7 June 2006:
"… the term 'adjacent wetlands' was used in the EPA's letter of 23 March 2006 to identify the wetlands to the south of the excavation as outlined in green on the attachment (Figure 5).
You should be aware that the EPA's public advice is non binding and as a decision making authority, the Shire of Serpentine-Jarrahdale may impose development conditions on a proposal as they see fit."
44 With respect, the advice of the EPA referred to above did not assist as both parties interpreted it as assisting their position on the location of the fence.
45 Mr Luke Rogers, an environmental scientist who appeared for the applicant, argued that the EPA only wanted the wetland fenced and submitted that a fence on the edge of the wetland was all that was required for its protection. The buffer would identify a setback for any activity. In addition, the activity proposed did not require fencing of the buffer, particularly to the south where it was considered there was no nexus with the development. The applicant also referred to the difficulty with managing a fenced buffer, with former pasture in the buffer subject to weeds previously controlled by grazing.
46 Mr Andrew Mack, an environmental consultant called by the respondent, said a fence on the buffer was required to prevent what he called "edge effects" impacting on the wetland. He also drew attention to weed control measures identified in the management plan.
47 The application to the respondent was for approval of a development which included a sand quarry, rehabilitation of the quarry site and provision of the vegetation links as an environmental offset. The Tribunal considers that the vegetation strip, including the wetland, in the application gives rise to the need for a buffer on both the northern and southern side to ensure the vegetation strip can be established and will endure. From the evidence, the Tribunal has formed the view that the buffer will only be able to achieve the purpose intended by the proposal if it is fenced. That is, to properly separate the proposed vegetation strip from the existing rural land use to the south and, to the north, to provide
(Page 12)
- an identifiable separation from all the works associated with the sand quarry.
48 The Tribunal has therefore found that the amended condition 33, as now proposed by the respondent, is to be endorsed with the date added to properly identify Figure 5.
Condition 34
49 Condition 34 of the respondent's approval of 22 May 2006 required:
"Rehabilitation of the Conservation category wetland as an ecological offset to the proposed mining activities to commence within one year of the commencement of mining operations and is to be completed to the satisfaction of the Shire prior to the commencement of Stage 6."
50 Mr Gleeson's submission was that the sand ridge was identified in the Jandakot Structure Plan for Landscape/Landform Protection. He was of the opinion that the removal of the ridge would have a significant environmental impact and condition 34 would go some way toward off-setting that impact This, he submitted was consistent with management of the environment as provided for in EPA Position Statement No 9.
51 Mr Gleeson said he was aware of the applicant's intention in its application to provide the vegetation linkages by way of an environmental offset, but considered the conservation category wetland should also be enhanced by the rehabilitation required by condition 34.
52 Mr Mack was of the opinion that, as the proposed work would be in close proximity to the conservation category wetland, the condition was appropriate. It would, in his view, improve the environmental and biodiversity quality of the conservation category wetland ensuring the main environmental features of the site are maintained.
53 The applicant seeks to have condition 34 deleted and there be no replacement condition. In the management plan and the attached vegetation report, Mr Stephens, who is the principal of Landform Research, identified that the vegetation on the sand ridge was of a low level of species diversity and degraded. It was proposed that the excavated area be rehabilitated to parkland pasture with clumps of trees. Mr Stephens identified, at page 21 of the vegetation report, that it made more sense to provide as an offset a greater area of revegetation creating
(Page 13)
- the linkage between the wetlands at the east and the west of the subject land. This area of revegetation would be greater than that removed by excavation.
54 Mr Rogers gave evidence that there was no requirement for provision of environmental offsets associated with the conservation category wetland because the sand excavation would not have any impact on the wetland. This was because of the nature of the activity, the distance between them, there being no dewatering and because ground water clearance would be maintained.
55 The provision of an environmental offset was part of the application for development approval. From the evidence the Tribunal has accepted, however, that the development does not give rise to any direct requirement that there be an offset for impact on the conservation category wetland, because there will be no impact. There will, however, be the impact from the loss of the ridge and its vegetation. EPA Position Statement No 9 refers to "like for like" offset or preferably a net environmental benefit. There can be no replication of the ridge as a topographical feature, but the applicant's management plan has as an undertaking to provide a vegetation offset that more than replaces, and with greater diversity, the vegetation removed from the ridge in a location that achieves the aspirational net environmental benefit of EPA Positional Statement No 9. While there is an attraction to requiring that an even greater environmental benefit be provided, the Tribunal has accepted that in this instance, it is not necessary for the applicant to do yet more than already proposed.
56 The Tribunal has therefore concluded that condition 34 can be deleted from the approval of 22 May 2006.
Condition 35
57 Condition 35 of the respondent's approval of 22 May 2006 provided that:
"A Conservation Covenant is to be prepared by the developer for the Conservation Category Wetland to the satisfaction of the Shire and a caveat is to be placed on the Certificate of Titles [sic] for the subject lots binding the current landowners and their heirs and successors to the Conservation Covenant to ensure protection of the wetland in perpetuity."
(Page 14)
58 Both Mr Gleeson and Mr Mack were of the view that the covenant was necessary to ensure the conservation category wetland would be protected in perpetuity. Without it, they submitted, protection would only be afforded by the application of the policies of the EPA and so would be potentially vulnerable to future development pressures. The covenant would protect a relatively small portion of the subject land and would not unduly restrict the future development of the remainder.
59 The respondent drew attention to Principle H of EPA Position Statement No 9 which states that the offset outcome must be long term and, where relevant to an ecosystem, protected by a covenant. Mr Gleeson said he envisaged that the covenant would be with the Commissioner for Soil Conservation, although the Commissioner's advice had not been sought.
60 The applicant objected to condition 35, seeking that it be deleted and there be no replacement condition. Mr Rogers said there was already adequate protection for the wetland. He referred to the powers of s 38 of the EP Act where significant proposals are referred to the EPA, and this included where a conservation category wetland was likely to be affected such as with this application. The EPA would then determine if a formal environmental impact assessment was required and provide appropriate advice.
61 As indicated in the discussion on condition 34, the Tribunal considers that the environmental offset in this instance is generated by a properly placed concern to address the removal of the ridge and the vegetation associated with it. The offset is not generated by any impact on the conservation category wetland. It makes sense to attach the conservation category wetland to the vegetation strip that will result from the environmental offset so that there is the continuous link between such wetlands. There happens to be a conservation category wetland on the subject land and it will benefit from the environmental offset proposed by the applicant, but in the absence of a link between the excavation and the presence of the conservation category wetland, the Tribunal has concluded that the condition cannot be supported.
62 The Tribunal has therefore determined that condition 35 be deleted from the approval of 22 May 2006.
(Page 15)
Condition 56
63 The parties did not reach an agreed position on condition 56. The applicant has continued to argue that the condition be deleted. Condition 56 of the respondent's approval of 22 May 2006 required that:
"Commercial vehicles associated with the operation of the extractive industry on the subject site are not to use roads within the Shire during school bus travel times."
64 Subsequent to the submissions of the applicant, the respondent amended the condition to read:
"The Applicant is to ensure that commercial vehicles associated with the operation of the extractive industry on the subject site do not use King or Hopkinson Roads at the time those roads are used by school buses".
65 Mr Gleeson said it was estimated that school buses would be on the two roads for about twenty minutes each afternoon, but that school bus operators would be able to provide advice of specific times. It was expected that no trucks from the sand quarry be on the two roads at these times. The condition had arisen, he said, because of concern about truck traffic near a school at opening and closing times.
66 Hopkinson Road is separated from King Road by about 8.5 kilometres of Thomas Road. Mr Jonathan Riley, a traffic engineer called by the applicant, gave evidence that Thomas Road is a district distributor with traffic lights at the Nicholson Road intersection. Average daily traffic flow is 5043 vehicles per day at the eastern end, with heavy vehicles 17.3% of the vehicles heading east and 15.9% heading west. School buses also used Thomas Road. He was of the opinion that delays might occur on Thomas Road because of the lights and accidents and stoppages possible on this category road with this volume of traffic.
67 Mr Riley said drivers would not be able to leave from either the sand quarry or the destination unless they could be certain that they would not be on the mentioned road at the other end at the school bus periods. This, in his estimation, meant that each morning and afternoon there would be at least a thirty minute period when the trucks should not depart. If there were delays for some reason on Thomas Road, and a truck travelling east could not be sure of being clear of Hopkinson Road during the school bus period, it would have to park somewhere on Thomas Road and not enter Hopkinson Road. In his view, this was likely to be more of a hazard than
(Page 16)
- a truck on the designated roads during the school bus periods. The school buses could also be subject to some delay on the roads, at the schools or bus stops introducing more uncertainty.
68 Mr Riley said school buses used Thomas Road with its truck traffic, and data showed there were no recorded accidents involving school buses and trucks on any roads. It was Mr Riley's evidence that local distributor roads with a 7.5 metre wide pavement were designed to accommodate this level of traffic. The sand quarry might generate four additional truck movements on the roads at the school bus times, two in each direction, and this would be a minimal addition to existing traffic. His uncontradicted opinion was that there was no technical reasons for keeping the trucks off the roads at this time.
69 The Tribunal considers this condition to be too impractical to be sensibly applied given the vagaries of traffic flows and potentially disproportionate impact from requiring trucks to be idle for about an hour each working day in circumstances where there is no evidence of any conflict between truck traffic and school buses on rural roads. An additional concern was lack of evidence of how such a condition could be universally applied considering the volume of truck traffic in the Shire and the network of rural roads used by school buses, as shown in Mr Riley's witness statement.
70 The Tribunal has determined that condition 56 be deleted from the conditions of approval.
Orders
71 From the deliberations on this matter the Tribunal orders as follows:
1. The application for review be allowed in part.
2. The conditions of approval imposed by the Shire of Serpentine-Jarrahdale in its approval decision of 22 May 2006 be amended as follows:
2.1 Condition 2 be amended to read:
"Operating hours are restricted to 6am to 5pm Monday to Saturday and are not permitted to occur on Sundays and Public Holidays. Operations include, but are not limited to, the movement of all vehicles (bulldozers, front end loaders, water trucks, gravel trucks and fuel
- trucks) involved in the extractive industry. This includes external contractor's vehicles and those not specifically designated as Caversham Property Pty Ltd's property."
- 2.2 By consent condition 19 be deleted and replaced with a new condition stating:
"19. The Applicant shall use its best endeavours to minimise the visibility of all works including stockpiles from King or Coyle Roads."
2.3 By consent, condition 25 and condition 26 be deleted and be replaced withstanding a new condition 25 to read:
"25. The landowner is to maintain a 20 metre buffer between the top of all quarry pits and the property boundary and indigenous vegetation within this buffer is to be protected where possible, including where safe and practical the diversion of fire breaks around existing indigenous vegetation. Planting of screening vegetation is to be undertaken in the winter of 2006 along the northern boundary of the land the subject of this approval and along King Road, together with supplementary planting along Coyle Road, as identified by the blue lines on the attached plan date stamped 13 June 2006 entitled 'Screening Buffer Revegetation Plan'."
2.4 There be no condition 26.
2.5 By consent, conditions 27, 28 and 29 be deleted and replaced with two new conditions as follows:
- "27. Stages 1 and 2 are to be rehabilitated and revegetated within one year from the completion of each respective stage.
- 28. Stages 3 to 6 are to be rehabilitated and revegetated within two years from the completion of each respective stage."
- 2.6 There be no condition 29.
2.7 By consent, condition 32 be deleted and replaced with a new condition:
- "32. A 50 metre buffer is to be maintained around the wetlands adjacent to the excavation area on Lots 713, 200, 441 and 1242 as depicted on the attached Figure 5 date stamped 13 June 2006."
2.8 Condition 33 be deleted and replaced with a new condition to read:
- "33. Prior to the commencement of excavation activities, the wetlands adjacent to the excavation area on Lots 713, 200, 441 and 1242 are to be fenced to protect the wetlands from grazing and other activities. Such fence to consist of post and wire or post and rail and to be located on the external edge of a 50 metre buffer area as depicted on the attached Figure 5 date stamped 13 June 2006."
2.9 Condition 34 be deleted and there be no condition 34.
2.10 Condition 35 be deleted and there be no condition 35.
2.11 Condition 56 be deleted and there be no condition 56.
- 3. The respondent file and provide to the applicant by 7 July 2006 a schedule of all of the conditions of approval imposed on the development as amended by these orders.
- I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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