CEMEX Australia Pty Ltd and Town Of Vincent
[2008] WASAT 153
•30 JUNE 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CEMEX AUSTRALIA PTY LTD and TOWN OF VINCENT [2008] WASAT 153
MEMBER: MR D R PARRY (SENIOR MEMBER)
MR J JORDAN (MEMBER)
HEARD: 24 JUNE 2008
DELIVERED : 30 JUNE 2008
FILE NO/S: DR 13 of 2008
BETWEEN: CEMEX AUSTRALIA PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Extension of hours of operation of existing concrete batching plant from 7 pm to 6 am Monday to Saturday excluding public holidays - Periodic extension of hours approved by previous planning authorities - Area transferred to Town of Vincent - Mixed use area - Predominantly commercial and light industrial uses with limited residential use - Minister for Planning and Infrastructure directed State Administrative Tribunal to hear the application but, without determining it, to refer it with recommendations to the Minister for determination - Orderly and proper planning - Local and regional planning considerations - Sustainable use and development of land - Regional traffic convenience and safety - Dust - Noise - Traffic - Amenity
Legislation:
City of Perth City Planning Scheme No 2, Sch 3
City of Perth Local Planning Scheme No 26
Environment Protection (Noise) Regulations 1997(WA)
Interpretation Act 1984 (WA), s 16(1)
Local Government (Constitution) Regulations 1998 (WA), reg 5(4)
Planning and Development Act 2005 (WA), s 3(1)(c), s 246, s 252(1)
Result:
Conditional development approval recommended for extension of hours from 7 pm to 6 am Monday to Saturday excluding public holidays until 16 October 2012
Category: B
Representation:
Counsel:
Applicant: Mr M Gregory with Dr S Willey
Respondent: Mr SJ Bain (Town Planner)
Solicitors:
Applicant: Minter Ellison
Respondent: SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
BP Australia Pty Ltd v City of Perth [1994] WATPAT 2; (1994) 10 SR (WA) 110
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
REASONS FOR RECOMMENDATIONS OF THE TRIBUNAL:
Summary of Tribunal's recommendations and reasons for recommendations
CEMEX Australia Pty Ltd applied for development approval for extension of operating hours of an existing concrete batching plant in East Perth so as to permit 24-hour operation from Monday to Saturday, excluding public holidays, until the expiry of the development approval for the daytime operation of the plant on 16 October 2012. It is likely that approval of the proposed development would result in occasional overnight operations in order to facilitate construction of major infrastructure projects and commercial developments in and around the city of Perth. The Town of Vincent refused the development application. CEMEX Australia Pty Ltd sought review of that decision by the State Administrative Tribunal.
The Minister for Planning and Infrastructure considered that the application to the Tribunal raises issues of such regional importance that it is appropriate for the application to be determined by the Minister. The Minister directed the Tribunal to hear the application but, without determining it, to refer it with recommendations to the Minister for determination.
Previous planning authorities had approved the proposed extended hours periodically between July 1998 and March 2002, and between April 2007 and October 2007. Occasional overnight operations also took place between April 2002 and October 2006, without development approval, on the basis of a "misunderstanding" on the part of the company that night-time operations were authorised.
The site is located proximate to the Perth central business district and the regional freeway system. The predominant land uses in the locality are commercial and light industrial, with limited residential development. There is another concrete batching plant in the locality that is very similar to the CEMEX plant and has development approval permitting 24-hour operation from Monday to Saturday, excluding public holidays, until 26 June 2012.
The principal issues in the review proceedings concern orderly and proper planning, dust, noise, traffic and amenity.
The Tribunal considered that the proposed development is consistent with orderly and proper planning. Significantly, the applicable planning framework has not changed, and the characteristics of the immediate locality have not changed substantially, since the previous periodic approvals and since the approval of extended hours of operation at the other concrete batching plant in the locality. Significantly, also, the proposed extension of hours involves the sustainable use and development of land and facilitates improved traffic convenience and safety on a regional level.
The Tribunal also considered that the proposed development is acceptable in relation to dust, noise and traffic. The plant has operated in a generally satisfactory manner for a number of years, including with the proposed extended hours. Because of the modern and enclosed nature of the plant, and current dust control and other management measures, the proposed development is likely to result in satisfactory respirable particulate concentrations in the locality. If specified noise attenuation measures, which can be conditioned, are complied with, noise emissions from the plant during the proposed extended hours will comply with the Environment Protection (Noise) Regulations 1997 (WA). The road network surrounding the site is adequate to accommodate the traffic generated by the proposed extended hours of operation.
The Tribunal therefore recommended that the Minister should set aside the Town's decision to refuse the development application and grant conditional development approval until 16 October 2012.
Introduction
These proceedings involve an application brought by CEMEX Australia Pty Ltd (formerly Rinker Australia Pty Ltd trading as READYMIX) (CEMEX) under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of a decision of the Town of Vincent (Town or Council) to refuse development approval for an extension for the approved hours of operation of an existing concrete batching plant at No 120 (Lot 1001) Claisebrook Road, East Perth (site) so as to permit 24-hour operation from Monday to Saturday excluding public holidays. CEMEX seeks an extension of hours of operation until 16 October 2012, which is the date on which the development approval authorising use of the site as a concrete batching plant between 6 am and 7 pm Monday to Saturday, excluding public holidays, expires.
The Minister for Planning and Infrastructure (Minister) considers that the application for review raises issues of such regional importance that it is appropriate for the application to be determined by the Minister and has, therefore, "called in" the application for determination under s 246 of the PD Act. In accordance with s 246(2)(b) of the PD Act, the Minister has directed the State Administrative Tribunal (Tribunal) to hear the application but, without determining it, to refer it with recommendations to the Minister for determination.
Site and locality
The site has a roughly triangular shape and an area of approximately 4,870 square metres. The site is bounded by Claisebrook Road to the west, Caversham Street to the north and a railway reserve accommodating the termination of the transcontinental railway to the south and east. Abutting the railway reserve is a dual use pathway and the Graham Farmer Freeway.
The site is located at the edge of Precinct 15: Claisebrook Road North (Precinct 15) under the East Perth Redevelopment Scheme (EPRS). Precinct 15 is bounded by Lord Street, which is a major arterial route reserved as a regional road under the Metropolitan Region Scheme, to the west, the Graham Farmer Freeway and railway line to the south and east, and Somerville Street to the north.
Precinct 15 comprises a mixed use area. However, there is a difference of opinion between the town planning expert witnesses, Mr David Caddy, who gave evidence on behalf of CEMEX, and Mr Simon Bain, who gave evidence on behalf of the Town, in relation to the proper characterisation of the predominant land use or uses in the locality of the site.
Mr Caddy considers that surrounding land uses within Precinct 15 are predominantly commercial and light industrial uses. Mr Caddy presented a land use analysis superimposed on a cadastral plan of Precinct 15 (Exhibit 19) which supports his opinion in relation to the predominant land uses. In oral evidence, Mr Caddy conceded that three properties, which he classified as commercial or industrial, comprise residential or student accommodation uses. However, even if these properties were included in the residential category, only approximately 11% of the area of Precinct 15 is used for residential purposes, whereas approximately 28% is used for commercial purposes, approximately 26% is used for light industrial purposes, and approximately 6% is used for general industrial purposes in the form of the concrete batching plant on the site and a very similar concrete batching plant operated by Hanson Construction Materials Pty Ltd (Hanson) at the southern end of Precinct 15. Thus, approximately 60% of the area is used for commercial and industrial purposes while only 11% is used for residential, including student accommodation, purposes. The remainder of Precinct 15 comprises vacant private land (approximately 7%), public open space (approximately 3%) and roads (approximately 20%).
In contrast, Mr Bain considers that residential and office/business land uses predominate in the Precinct. At first glance, Mr Bain's opinion appears to be supported by a land use survey of the Precinct presented at [25] ‑ [26] of his witness statement (Exhibit 8). Mr Bain's land use survey shows that 89 of the 175 units/premises (approximately 51%) in the surveyed area are residential and 28 (approximately 16%) are office/business.
However, one of the 89 residential units/premises in Mr Bain's land use survey comprises a backpacker development which is commercial in nature. Of the 88 residential units/premises, about 68 (approximately 77%) are residential units in four buildings. Two of these buildings are located on Lord Street, some distance to the north‑west of the site, one is located at the corner of Murchison Terrace and Gladstone Street one property away from Lord Street, and one is located just outside Precinct 5 to its north‑east. Each of these four buildings is separated from the site by at least one substantial street block of commercial/industrial properties.
The closest non‑commercial or industrial uses to the site are student accommodation for 50 students on the northern side of Caversham Street and a single house on Claisebrook Road to the north‑west of the site. The student accommodation is in the form of a reconfigured warehouse building and operates in conjunction with a training and education facility for young people on Claisebrook Road. The student accommodation and education and training uses were approved by the East Perth Redevelopment Authority (EPRA) on 20 November 2000, 13 years after development approval was granted for the concrete batching plant at the site and two years after development approval was granted for 24-hour operation of the plant.
Trucks and other vehicles accessing the plant at the site do so primarily from Lord Street into Edward Street and Claisebrook Road. The only residential uses along this route are a pair of original semi‑detached houses at Nos 34 ‑ 36 Edward Street. These houses are located just across Edward Street from the vehicular access road into the Hanson plant, and also face the Graham Farmer Freeway and the railway marshalling yards beyond.
On 26 June 1996, EPRA granted development approval under the EPRS for construction of the Hanson plant and for the operation of the plant for 16 years until 26 June 2012, subject to conditions which include a restriction on use to between 6 am and 7 pm Monday to Saturday inclusive, with no use on Sundays or public holidays. On 2 April 2008, the Tribunal allowed Hanson's application for review of the Town's decision to refuse development approval to permit 24-hour operation of its plant from Monday to Saturday, excluding public holidays, until the expiry of the development approval for the daytime operation on 26 June 2012 ‑ see Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71.
A mixed commercial/residential development is also currently under construction at the corner of Edward Street and Claisebrook Road, adjoining the semi‑detached houses at Nos 34 – 36 Edward Street, comprising two commercial units at ground level and two residential units above. These units will also face the Graham Farmer Freeway and marshalling yards.
In light of the foregoing, the Tribunal accepts Mr Caddy's evidence that surrounding land uses in Precinct 15 are predominantly commercial and light industrial uses. There is only limited residential development either in existence or under construction in the locality of the site. Furthermore, the amenity of the student accommodation across Caversham Street from the site, the single house in Claisebrook Road, the semi‑detached houses at Nos 34 – 36 Edward Street, and the two residential units under construction at the corner of Edward Street and Claisebrook Road, is significantly affected by the major transport infrastructure to the south‑east of Precinct 15. The existing approved concrete batching plant at the site, which operates from 6 am to 7 pm Monday to Saturday, excluding public holidays, and the existing approved concrete batching at the Hanson site, which is permitted to operate 24‑hours a day from Monday to Saturday, excluding public holidays, also form part of the existing amenity of the locality.
Background
On 27 July 1987, the City of Perth (City) granted development approval for the construction and operation of a concrete batching plant at the site subject to conditions which included limiting the period of the use to 25 years. On 16 October 1987, the State Planning Commission approved amended plans for the plant subject to conditions which, among other things, limited the period of the use to 25 years from the date of the approval, that is, until 16 October 2012. This development approval did not restrict the hours of operation of the plant. The plant was constructed in 1987/1988.
EPRA replaced the City as the responsible planning authority for Precinct 15 between 1992 and January 2002. On 24 January 1996, EPRA granted development approval under the EPRS for construction of the plant in its current location, following the resumption of the majority of the site for construction of the Graham Farmer Freeway. One of the conditions of development approval restricted access to the site by concrete trucks to between 6 am and 7 pm Monday to Saturday, with no access on Sundays or public holidays.
The current plant was constructed in 1996. Mr Fred Adams, CEMEX's Area Manager, North‑West and until recently its Manager, Perth Concrete, gave evidence, which was not questioned or contradicted, and which the Tribunal accepts, that the plant is one of the most modern concrete batching plants in the Perth metropolitan area.
Raw materials are brought to the site by trucks and are deposited into underground receiving bins in an enclosed shed. The raw materials are transferred by underground or covered conveyor to the batching facility. The batching facility is also contained in an enclosed shed and includes a dust extraction vacuum system.
Concrete trucks enter the site from Caversham Street and proceed across the yard to the batching facility. Trucks enter the loading bay in the batching facility through an automatic door on the eastern side which is closed during the loading process. The western side of the loading bay is open. Before trucks exit the loading bay to the west, their wheels are automatically washed. Trucks then proceed to the slumping stand located adjacent to the railway reserve near Claisebrook Road where the load is "trimmed", which involves adding water and cement to finetune the load as required. Trucks are hosed down during the slumping process and then exit the site to Claisebrook Road.
The only part of the concrete batching process that is not enclosed is the slumping. Automatic sprinklers suppress dust in the open areas of the site.
The plant operates in a very similar way to the Hanson plant ‑ see Hanson Construction Materials Pty Ltd and Town of Vincent at [15] ‑ [17]. The principal differences are that the slump stand at the site is open, whereas it is enclosed at the Hanson plant, and the cement silos at the site are fully enclosed, whereas they are not enclosed at the Hanson plant.
On 28 July 1998, EPRA granted development approval for 24-hour operation at the site for a period of eight weeks to facilitate the construction of the Graham Farmer Freeway. On 14 August 1998, CEMEX applied for development approval for 24-hour operation at the plant for a period of 12 months in order to supply concrete for major road projects. On 30 September 1998, EPRA refused to grant development approval. On 27 November 1998, CEMEX appealed against the refusal of development approval to the Minister. On 25 March 1999, the Minister upheld the appeal and granted development approval for 24-hour operation for a period of 12 months.
On 13 April 2000, and again on 15 March 2001, EPRA granted development approval for 24-hour operation of the plant, in each case for a 12‑month period.
During the period between March 2002 and October 2006, the plant continued to operate on occasion between 7 pm and 6 am Monday to Saturday. Mr Adams explained that, owing to a "misunderstanding" as to the continuing effect of earlier development consents for extended hours operations at the plant, these extended hours operations occurred without development approval.
On 6 October 2006, the City wrote to CEMEX advising that a complaint had been received relating to extended hours operations at the site. The City advised further that any operations outside the hours of 6 am to 7 pm Monday to Saturday would be unauthorised. CEMEX ceased all extended hours operations between October 2006 and May 2007.
On 4 January 2007, CEMEX applied to the City for development approval to enable 24-hour operation of the plant until the expiry of the substantive development approval on 16 October 2012. The City's assessing officer recommended that 24-hour operation should be approved for a 12‑month period "to allow the Town of Vincent (which is opposed to the unrestricted hours) to review the impact of the hours of operation and carry out community consultation as they [sic] see fit" (Exhibit 2 page 16). On 24 April 2007, the City granted development approval for 24-hour operation for a period of six months only "to allow a review of the impact of the plant and associated vehicle movements on the surrounding area at the conclusion of" this period.
On 1 July 2007, Precinct 5 was transferred from the district of the City to the district of the Town.
On 20 August 2007, Allerding and Associates applied to the Town on behalf of CEMEX for development approval to permit 24-hour operation of the plant from Monday to Saturday, excluding public holidays, until the expiry of the substantive development approval on 16 October 2012.
Mr Adams provided a table and graph of truck movements to and from the site for the two year period between 1 September 2005 and 31 August 2007 (Exhibit 14 App 2). During that period, only 996 (less than 2%) truck movements to and from the site were outside the currently approved daytime operating hours of 6 am to 7 pm Monday to Saturday. Although this two year period included the period from October 2006 to May 2007 when CEMEX did not conduct any overnight operations, Mr Adams explained that operations during the proposed extended hours are likely to generate only a small percentage of overall truck movements from the site. After hours operations are likely to be infrequent and restricted to supplying concrete for large infrastructure or commercial projects that need to be undertaken after normal business hours in order to minimise traffic disruption. The concrete produced at the site is the same as the concrete produced at the Hanson site. Mr Adams' evidence is consistent with the evidence accepted by the Tribunal in Hanson Construction Materials Pty Ltd and Town of Vincent, at [24], that the proportion of concrete deliveries which occurred outside the 6 am to 7 pm period from the Hanson plant was 2.2% (2005), 1.6% (2006) and 5.7% (2007), and, at [25], that current demand for concrete is similar to the demand in 2007.
The Tribunal, therefore, considers that approval of the proposed development is likely to result in only the occasional overnight operations in order to facilitate construction of major infrastructure and commercial developments in and around the city of Perth.
The Town advertised the development application for public submissions. The Town received seven letters of support and 49 objections to the proposed development within the advertising period. Of the 49 objections, only eight appear to be from or in relation to residential properties in Precinct 15. Although a number of letters of objection were from residents in the area to the west of Precinct 15, that area is separated from the site by Lord Street.
The Town considered the development application at its meeting on 18 December 2007. The Town resolved to refuse the development application for the following reasons:
"(a)the development is not consistent with the orderly and proper planning and the preservation of the amenity of the locality;
(b)the significant increase in the adverse impact on the community;
(c)the excessive noise, dust and traffic impacts caused by the concrete batching facility and the numerous concrete batching trucks and heavy haulage trucks bringing raw materials to the site as a result of operating during the previous extended hours of operation;
(d)the proposal is not an appropriate compatible activity with the surrounding residential land use in the current location;
(e)the proposal results in an impediment to appropriate regeneration of the area with further additional residential developments and will further entrench the subject use, thus prejudicing any such regeneration;
(f)the proposal results in greater disbenefit than benefit to the residents and owners of other businesses in the immediate and surrounding vicinity of the subject development site;
(g)the concerns raised by the Department of Environment and Conservation (DEC) in its letter dated 7 November 2007, that the 24-hours' operation of the concrete batching plant has potential to adversely impact the health, welfare, convenience, comfort or amenity of the nearby residents;
(h)consideration of the numerous objections received; and
(i)it is considered that there are alternative concrete batching plants within close proximity of the Perth metropolitan area and CBD to cope with outside business hours demand for concrete." (Exhibit 2 page 102)
Following the commencement of the review proceedings, on 1 February 2008, the Town sought clarification from the DEC in relation to its opposition to extended hours referred to in par (g) of the Town's reasons for refusal. On 20 March 2008, the Town received a letter from the DEC's Manager Environmental Regulation Response in relation to both the CEMEX plant and the Hanson plant. The letter states that the DEC does not support 24-hour operation at either plant for the following two reasons:
"•ongoing complaints regarding dust and noise from these premises; and
•non-compliance with The Environmental Protection Authority Guidance Note 3 Separation Distances between Industrial and Sensitive Land Uses (2005). As per guidance note 3, the premises and residents should be 500 metres [sic]." (Exhibit 2 page 340)
The letter from the DEC also states that the Department "has taken enforcement action in relation to minor offences at one of these facilities", although it does not say whether this is the facility in question in these proceedings or the Hanson plant. Mr Adams gave evidence, which was not questioned or contradicted, that, as far as he is aware, CEMEX has never received an infringement notice relating to the plant at the site. CEMEX's files and systems dating back to 2000 do not contain any document recording or referring to any infringement.
Applicable local planning framework
In Hanson Construction Materials Pty Ltd and Town of Vincent, the Tribunal determined, at [35] ‑ [41], that the applicable local planning framework is contained in the EPRS, because, on 30 June 2007, Sch 3 of the City of Perth City Planning Scheme No 2 (CPS 2) stated as follows:
"P15 East Perth
Land in this Precinct is within the boundaries of the East Perth Redevelopment Area and is therefore under the control of the East Perth Redevelopment Authority. Refer to East Perth Redevelopment Scheme text and Policies Manual for further information."
At [39], the Tribunal determined that the intention of this provision is that development in the area identified as P15 East Perth in CPS 2 ‑ which includes Precinct 15 and other areas to the south and east of the Graham Farmer Freeway ‑ is to be regulated by the EPRS and, therefore, following the transfer of planning responsibility over this area from EPRA to the City, to incorporate the EPRS text into CPS 2 in relation to that area.
At [36], the Tribunal referred to reg 5(4) of the Local Government (Constitution) Regulations 1998 (WA) (Constitition Regs) which states, in part, as follows:
"If as a result of the order the area of district A [relevantly, the Town] incorporates a part of the area of another district (which is not abolished) ("district B") [relevantly, the City], then on commencement ‑
…
(c)if immediately before commencement that part of district B [relevantly, the City] is subject to a town planning scheme that is in force under the [PD Act] ‑
(i)the scheme has effect in respect of that part as if it were a scheme prepared by local government A [relevantly, the Town] in respect of that part, approved by the Minister under that Act, and published under that Act on commencement;
…"
At [41] ‑ [42], the Tribunal noted that the City of Perth Local Planning Scheme No 26 (LPS 26), which had been prepared by the City well before 1 July 2007, was ultimately gazetted on 11 September 2007. At the same time, Sch 3 of CPS 2 was amended by deleting the text referred to at [42] above and by inserting the following text:
"Refer to the relevant local planning scheme for the classification of uses within this Precinct."
At [42] of the decision in Hanson Construction Materials Pty Ltd and Town of Vincent, the Tribunal determined that, although LPS 26 was intended to apply to the site when it was formulated and approved by the City, it cannot apply, because the site was not within the City's municipal area by the time LPS 26 was gazetted. However, the Tribunal observed that, because the planning framework for the site envisaged by LPS 26 is substantially similar to the planning framework for the site under the EPRS ‑ via CPS 2 ‑ the result in that review would have been no different if LPS 26 had applied.
CEMEX contends in these proceedings that the Tribunal's determination as to the applicable local planning framework in Hanson Construction Materials Pty Ltd and Town of Vincent is not correct, because submissions on the effect of s 16(1) of the Interpretation Act 1984 (WA) (Interpretation Act) were not put to, or considered by, the Tribunal.
Section 16(1) of the Interpretation Act states as follows:
"A reference in a written law to a written law shall be deemed to include a reference to such written law as it may from time to time be amended."
CEMEX contends that, in consequence of this provision, the reference in cl 5(4)(c) of the Constitution Regs ‑ the first‑mentioned written law ‑ to a town planning scheme ‑ the second‑mentioned written law ‑ includes a reference to CPS 2 as it was amended on 11 September 2007.
The Tribunal considers that CEMEX's reliance on s 16(1) of the Interpretation Act is misconceived and that its contention is incorrect for three reasons.
As amended on 11 September 2007, cl 4 of CPS 2 states as follows:
"(1)This Scheme applies to the Scheme area which covers all the municipal district of the City, apart from the area illustrated on the Scheme Map, comprising the land that is in the East Perth Redevelopment Scheme Area.
(2)The land depicted on the Scheme Map as the Normalised East Perth Development Area is subject to this Scheme and the City of Perth Local Planning Scheme No 26 (East Perth Redevelopment Area), and is not subject to the provisions of the Redevelopment Scheme referred to in Regulation 5(2) of the East Perth (Subtracted Area) Regulations 2002." (Emphasis in bold added)
It is clear from cl 4(1) of CPS 2 that the intention of the Scheme is to apply only to the municipal district of the City. As Precinct 15 was removed from the municipal district of the City on 1 July 2007, any amendment to CPS 2 brought into effect on or after that day does not apply to Precinct 15. While cl 4(2) states that the land depicted on the Scheme Map as the Normalised East Perth Development Area is subject to CPS 2 and LPS 26, and the site is shown as Normalised East Perth Development Area, when subclauses (1) and (2) are read together, it is apparent that subclause (2) only refers to those parts of the Normalised East Perth Development Area that were within the municipal district of the City on 11 September 2007.
Furthermore, the effect of reg 5(4)(c) of the Constitution Regs is that Sch 3 of CPS 2 in relation to the area transferred from the City to the Town is deemed to have been prepared by the Town, approved by the Minister and gazetted, on 1 July 2007. From that day onwards, Sch 3 of CPS 2 as it applies to Precinct 15, was, in law, a separate and distinct local planning scheme to Sch 3 of CPS 2 as it applies to the parts of the area identified as P15 East Perth in CPS 2 to the south and east of the Graham Farmer Freeway that remain in the municipal district of the City. The amendments made on 11 September 2007 were to the original CPS 2, not to the separate and distinct CPS 2 that was deemed to have been remade on 1 July 2007.
Finally, the apparent intention of reg 5(4)(c) of the Constitution Regs is to transfer planning authority from the City to the Town by deeming the relevant part of CPS 2 to have been prepared by the Town and remade as at 1 July 2007. It would be contrary to the intention of reg 5(4)(c) for a scheme amendment prepared by a former planning authority to apply to a scheme that is deemed to have been prepared by a subsequent planning authority.
CPS 2 has not, therefore, been amended in relation to the site. The applicable local planning framework is contained in the EPRS via CPS 2 as it stood on 30 June 2007. However, as the parties both recognised, nothing turns in this case on whether the applicable local planning framework is contained in the EPRS or in LPS 26. LPS 26 essentially adopts the planning provisions in the EPRS. As in Hanson Construction Materials Pty Ltd and Town of Vincent, the result recommended by the Tribunal in this review would be no different if the local planning framework were contained in LPS 26, rather than in the EPRS.
Issues for determination
The following five principal issues arise for determination in the review:
(1)Whether the proposed development is consistent with orderly and proper planning.
(2)Whether the proposed development is acceptable in relation to dust.
(3)Whether the proposed development is acceptable in relation to noise.
(4)Whether the proposed development is acceptable in relation to traffic impacts.
(5)Whether the proposed development is acceptable in relation to amenity.
The Tribunal will address each of these issues in turn.
Orderly and proper planning
Mr Caddy considers that because the relevant planning locality is predominantly commercial and light industrial, extended hours of operation for the batching plant is consistent with orderly and proper planning. Mr Caddy also considers that the proposed extension of hours represents a sustainable use of the site, because the proximity of the site to the CBD reduces the number of trucks travelling into and out of the city and reduces the total number of vehicles necessary to satisfy the demand for concrete.
In contrast, Mr Bain considers that the proposed development is not consistent with orderly and proper planning. Mr Bain observes that the planning controls have been progressively implemented by the redevelopment of sites for Preferred and Contemplated land uses. He says that to allow an intensification of a land use that is not even a Contemplated Use is neither proper nor orderly planning. Furthermore, Mr Bain says that the intensification of the concrete batching use by extended hours operations would be an impediment to redevelopment of the area for the Preferred and Contemplated land uses, particularly residential use. Mr Bain also says that there is no need for extended operations at the plant, because there are other plants that can operate at night.
Clause 5.18.1 of the EPRS sets out the following Statement of Intent for Precinct 15:
"Within this Precinct, commercial, retail, service and light industrial uses compatible with residential use will be supported, including uses providing services to the businesses and residents of the central and inner city.
The [EPRA] intends that there should be an improvement in the general level of amenity of the Precinct, with the improved presentation and maintenance of private properties and the public domain, and a progressive reduction in the incidence of those industrial activities incompatible with other uses, including residential development."
Clause 5.18.2 of the EPRS states that "Preferred Uses" in Precinct 15 are commercial, service and light industry, retail and residential uses and that "Contemplated Uses" are community and recreation uses.
Clause 5.2.4 of the EPRS contemplates approval of uses that are neither Preferred Uses nor Contemplated Uses, after appropriate advertising for public submissions and consultation in accordance with cl 2.9 of the EPRS, and after due consideration of the matters referred to in cl 2.10 of the EPRS. The Town undertook appropriate advertising for public submissions and consultation in accordance with cl 2.9 of the EPRS. Clause 2.10 of the EPRS sets out matters for consideration including "the requirements for orderly and proper planning" and "the preservation of the amenity of the locality".
Significantly, the applicable local planning framework has not changed since the approval of extended hours by previous planning authorities between July 1998 and March 2002, and again between April 2007 and October 2007.
Mr Bain suggested that the proposed development is contrary to the Town's "vision" for the area. However, this "vision" has not progressed to a seriously‑entertained proposal. Mr Bain explained that it is at the level of a "rough draft" at officer level, and that it will take up to six months to be brought to the Council for consideration. Mr Bain agreed that it would take a couple of years before the "vision" became an operative planning instrument.
Furthermore, the characteristics of the locality of the site, including the predominant land uses in that area, do not appear to have changed substantially, or at all, since the previous approvals for extended hours of operation.
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
Furthermore, the planning framework is the same as that considered in Hanson Construction Materials Pty Ltd and Town of Vincent, and the nature of the plant and the characteristics of the surrounding locality are very similar to the Hanson case. It is consistent with orderly and proper planning for very similar development applications in relation to very similar sites that are subject to the same planning controls to be determined in the same way.
It does not appear that the use of the site for extended operations between July 1998 and October 2006 and between April 2007 and October 2007 or that the use of the Hanson site for extended operations between June 2000 and November 2007 has been an impediment to residential development in the area. It appears that a number of residential buildings have been built in the locality over this period. The student accommodation in Caversham Street across from the site was also approved during this period.
CEMEX is not required, in order to obtain development approval, to demonstrate a need for extended operations at the plant: BP Australia Pty Ltd v City of Perth [1994] WATPAT 2; (1994) 10 SR (WA) 110 at 118.
Finally, the proposed development is consistent with orderly and proper planning in terms of regional planning considerations. One of the purposes of the PD Act is to "promote the sustainable use and development of land in the State": s 3(1)(c). State Planning Policy No 1 ‑ State Planning Framework identifies the primary aim of planning as "to provide for the sustainable use and development of land". The proposed extension of hours of operation promotes the sustainable use and development of land because the location of the site, proximate to the CBD and close to the regional freeway system, minimises travel distances, and hence carbon emissions, and enables construction activities for major infrastructure and commercial developments to take place at night when there is generally reduced traffic on the roads, resulting in less traffic congestion and shorter travel times, thereby further reducing carbon emissions.
Furthermore, the proposed development facilitates improved traffic convenience and safety on a regional level because it will potentially remove some truck movements from peak traffic times and will result in occasional truck movements at night when there is generally reduced traffic.
The Tribunal, therefore, considers that the proposed development is consistent with orderly and proper planning.
Dust
As noted earlier, the plant is one of the most modern in the Perth metropolitan region. Dust generation is minimised by the enclosure of most of the concrete batching process, the use of a dust extraction system in the loading facility and the operation of an automatic sprinkler system in the open areas of the site.
The Tribunal had the benefit of evidence from Mr Vlado Raich, an engineer specialising in air pollution monitoring. Mr Raich carried out dust monitoring at the site for a trial period of one month in April 2008. On the basis of this monitoring, Mr Raich gave evidence that:
•satisfactory dust concentrations can be achieved in the locality as long as the current dust management system is maintained; and
•night dust concentrations emitted as a result of the proposed development would have minimal impact on nearby residents, essentially because the residents are inside their homes.
Mr Raich's evidence was not questioned by the Council and was not contradicted by any evidence presented on behalf of the Council.
As noted earlier, the DEC opposes the proposed development because of "ongoing complaints regarding dust and noise" and because of noncompliance with the EPA's guidance statement in relation to separation distances between industrial and sensitive land uses.
However, there are a number of potential sources of dust in the locality of the site. In particular, there are a number of vacant properties and the area is exposed to emissions from the Graham Farmer Freeway. Furthermore, although the plant has been operating for over 20 years, including for about half that time during the proposed extended hours, it appears that the DEC has never issued an infringement notice in relation to the operation.
Noncompliance with the 500 metre separation distance recommended in the EPA's guidance does not warrant refusal of the proposed extension of hours in the circumstances of this case, given that:
•the concrete batching plant is an approved, historic use of the site;
•extended hours of operation were approved on four occasions between July 1998 and October 2007; and
•the plant is one of the most modern in the Perth metropolitan area, designed with a dust extraction system, underground and enclosed aggregate receiving bins and enclosed conveyor systems; contrast the proposed batching plant considered in Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44.
The Tribunal considers that the proposed development is acceptable in relation to dust.
Noise
The Tribunal had the benefit of evidence from Ms Rebecca Donovan, who is an environmental scientist specialising in acoustics. Ms Donovan prepared a Noise Management Plan for the proposed extended operations which makes the following recommendations in relation to the use of the site between 7 pm and 6 am:
•the existing slump stand should not be used;
•a night‑time slump stand should be constructed with a roof and wall at the existing truck washout area;
•mixing trucks should enter the site through the Claisebrook Road gates, enter the loading facility from the west, exit the loading facility via the east of the building, move to the night slump stand for slumping, and then exit the site through the Claisebrook Road gates;
•the Caversham Street gates should be closed;
•an automatic door should be installed on the western entry point of the loading facility so that the facility is fully enclosed during loading;
•the personnel entry door at the upper level of the loading facility on the western side should be closed; and
•trucks used at the site should be retrofitted with either directional or broadband reversing beepers. (Exhibit 16 App 2)
Ms Donovan gave evidence that, if these recommendations are implemented, then noise emissions generated by the proposed development would comply with the Environment Protection (Noise) Regulations 1997 (WA) (Noise Regs) at the closest noise sensitive premises, namely, the student accommodation facility across Caversham Street and the single residence on Claisebrook Road to the north‑west.
Ms Donovan observed that the Noise Regs do not regulate the noise of trucks travelling to and from the site. However, Ms Donovan gave evidence that the noise generated by trucks is comparable to the noise of some cars that are able to travel along the same route without restriction.
The only residential premises that are passed by vehicles travelling from the site to the Perth CBD or to the Graham Farmer Freeway are the semi‑detached houses at Nos 34 – 36 Edward Street and the two residential units under construction at the corner of Edward Street and Claisebrook Road. However, vehicles travelling to the Hanson plant also pass outside or close to these properties. Furthermore, these properties are significantly affected by noise from traffic on the Graham Farmer Freeway.
It is unlikely that concrete trucks exiting the site during the proposed extended hours would travel north away from the Perth CBD and the Graham Farmer Freeway. However, this route of travel within Precinct 15 only passes one residential property.
Ms Donovan's evidence was not questioned by the Council and was not contradicted by any evidence called on behalf of the Council.
The Tribunal, therefore, considers that the proposed development is acceptable in relation to noise.
Traffic impact
Mr Behnam Bordbar, a traffic engineer, carried out a traffic assessment of the proposed development on behalf of CEMEX (Exhibit 18). Mr Bordbar gave the following evidence:
•The truck movements during the extended hours are significantly less than the truck movements during the normal operating times of the site.
•The road network surrounding the site is of adequate standard to accommodate the truck traffic from the site during the extended hours.
•The proposed extended hours for the site will have no traffic impact on the surrounding road network.
•If the proposed development is not granted approval, the traffic impact will be greater than the insignificant impact of the proposal, because concrete trucks will have to travel to and from the site during traffic peak periods or will have to travel from batching plants further away from the Perth CBD.
Mr Bordbar's evidence was not questioned by the Council and was not contradicted by any evidence presented by the Council.
The Tribunal, therefore, considers that the proposed development is acceptable in relation to traffic impact.
Amenity
Precinct 15 is a mixed use locality with a preponderance of commercial and light industrial uses, and also with some general industrial use in the form of the CEMEX and Hanson plants. Residential development in Precinct 15 is limited and is generally separated from the site by at least one substantial street block comprising commercial and light industrial properties.
The residential properties that are closest to the site are the student accommodation in the converted warehouse across Caversham Street, a single house on Claisebrook Road to the north‑west, and the semi‑detached houses and two units under construction at the corner of Edward Street and Claisebrook Road. As noted earlier, the evidence presented to the Tribunal shows that the proposed development would have an acceptable impact on these residential properties in terms of dust and noise.
The Town did not call any resident of Precinct 15 to give evidence. The Town presented evidence from the owners of Nos 34 – 36 Edward Street who said that the concrete batching plant had caused distress to their tenants and caused them to lose a number of tenants over the years. However, this concern appears to relate substantially to the daytime use of the Hanson site, rather than to the CEMEX site or the proposed extended hours of operation of this site.
The Town also presented evidence from the owners of three non‑residential properties in the locality.
The secretary of a number of businesses and associations located at a commercial property at the corner of Somerville Street and Claisebrook Road gave evidence that spillages of materials from CEMEX trucks occur on occasion, vehicles parked at his premises become covered in dust and the whole area "looks like a garbage dump". However, when he recently advised CEMEX of a spillage, it was cleaned up within 20 minutes. There are a number of potential sources of dust in the locality. This witness' concerns appear to relate principally to the use of the site as a concrete batching plant as such, rather than to the proposed extended hours of operation.
A medical specialist who has consulting rooms in Cheriton Street said that, in travelling to and from work, he is frequently confronted by very large articulated trucks carrying materials for the batching plant. He said that up to 40 patients attend his practice in a typical day and that they should not be exposed to the hazard of large trucks. However, these concerns relate to daytime operation of the plant, not to the proposed extended hours.
Although amenity includes likely future amenity, the amenity of the locality, without the proposed extension of hours, is unlikely to change substantially by 16 October 2012.
The Tribunal, therefore, considers that the proposed development is acceptable in relation to amenity.
Conclusion
Although the concrete batching plant is a general industrial use that is neither a Preferred Use nor a Contemplated Use for Precinct 15 under the EPRS, it is a use that is capable of approval, and indeed, is the approved use of the site until 16 October 2012. Significantly, neither the planning framework nor the character of the locality has changed since extended hours of operation were approved by previous planning authorities at both the CEMEX site and the Hanson site, and since the Tribunal approved extended hours at the Hanson site from 2 April 2008 until 26 June 2012. Significantly, also, the proposed extension of hours involves the sustainable use and development of land.
The Tribunal considers that conditional development approval should be granted for the proposed extension of hours because it is consistent with orderly and proper planning, having regard to both local and regional planning considerations, and is acceptable in relation to dust, noise, traffic impact and amenity considerations generally.
The Tribunal considers that the proposed extended hours of operation should be granted until the expiry of the substantive development approval of the site on 16 October 2012. Although previous approvals for extended hours were limited to 12 months or six months, in order to enable monitoring of the impacts of the use and assessment in light of changing circumstances, the Tribunal has found on the evidence that the impacts are acceptable and that the characteristics of the locality are unlikely to change substantially prior to 16 October 2012.
Finally, the town planning evidence suggests that it will take between two and three years for a new local planning framework to be brought into effect in relation to the locality. The approval of extended hours of operation until the underlying development approval for the plant lapses in 2012 will enable the Town and relevant State authorities to develop, in consultation with CEMEX and the community, an appropriate strategic planning framework for future development of the site, having regard to its locational characteristics and local and regional planning considerations. It is in the interests of orderly and proper planning, both at a local and regional level, that the new planning framework is in place well before the development approval for the current use of the site expires.
Conditions
In accordance with the Tribunal's usual practice, the Town was required to provide "without prejudice" draft conditions of development approval that should be imposed if conditional consent is granted to the proposed development. CEMEX was then given an opportunity to comment on these draft conditions. This practice enables a "one stop" hearing at which the Tribunal can consider both whether development approval should be granted and, if so, subject to what conditions.
Ultimately, with two exceptions, the parties agreed on a set of conditions which should be imposed if development approval is granted. The two draft conditions that are proposed by the Town, but disputed by CEMEX, are as follows:
"Operations between 7 pm and 6 am are to be limited to a maximum of 10 days per year or alternatively the times of operation may be extended to only 6 am and 11 pm Monday to Saturday, excluding Sundays and public holidays."
"No delivery/removal of raw materials shall occur from the subject site during the approved extended operating times."
The Tribunal considers that these draft conditions should not be imposed if development approval is granted. The proposed development is likely to involve only occasional extended hours operations. The first condition is therefore unnecessary. It is also arbitrary and its meaning is uncertain. The second condition is also unnecessary because Mr Adams explained that the plant has storage capacity for approximately half a normal operating day's concrete production. It is, therefore, extremely unlikely that raw materials will need to be delivered at night. However, in the unlikely event that materials were brought to the site at night, the Tribunal considers, for reasons discussed earlier, that the development is acceptable.
Recommendations
The Tribunal recommends that the Minister should determine the application for review as follows:
1.The decision of the respondent made on 18 December 2007 to refuse development approval for extended hours of operation from 7 pm to 6 am Monday to Saturday of the existing concrete batching plant at No 120 (Lot 1001) Claisebrook Road, East Perth is set aside.
2.Development approval is granted for the extension of hours from 7 pm to 6 am Monday to Saturday of the existing concrete batching plant at No 120 (Lot 1001) Claisebrook Road, East Perth, subject to the following conditions:
(1)This approval authorises concrete batching operations and access to the site by trucks and semitrailers at any time between Monday and Saturday inclusive.
(2)There is to be no access to the site by trucks and semitrailers on Sundays or public holidays.
(3)Within one calendar month of the grant of this approval, the applicant shall submit a management plan to the respondent which addresses the following matters:
(a)noise management for on‑site activities;
(b)dust and cement waste management including regular washing down of trucks before exiting the site, dust control on-site, and regular sweeping and cleaning of materials originating from the CEMEX site spilled on surrounding roads;
(c)traffic management plan for all vehicles entering and exiting the site, including driver education in regard to truck routes, vehicle speeds, and operations to minimise disturbance and public safety concerns;
(d)the implementation of a complaint handling system which provides ‑
(i)a 24-hour telephone number and email address to log complaints and enquiries;
(ii)a record of complaints and enquiries logged, and the applicant's response, is to be provided on an annual basis to the respondent for its information; and
(e)a review of the management plan after the first 12 months of operation of the extended hours approved by this consent.
(4)Prior to the commencement of the extended hours of operation approved by this consent, the applicant must construct:
(a)the roofed night slump stand as recommended in the Herring Storer Acoustics Noise Management Plan for Night Operations (Job No: 07223-2, Document Reference: 8858‑3‑07223‑2) issued 5 June 2008 (Herring Storer Noise Management Plan); and
(b)the automatic door on the western side of the truck loading facility as recommended in the Herring Storer Noise Management Plan.
(5)The development must be carried out in accordance with the recommendations made in the Herring Storer Noise Management Plan including in particular, but without limitation, that between 7 pm and 6 am:
(a)the gates on Caversham Street must be closed;
(b)all vehicles and persons entering or exiting the site must do so via the Claisebrook Road gates;
(c)concrete trucks must enter the loading facility from the west, exit the loading facility via the east of the building, move to the night slump stand located behind the existing delivery shed, and then turn and exit via Claisebrook Road;
(d)the automatic doors on the western and eastern sides of the loading facility must be closed during loading;
(e)the personnel entry door on the western side of the upper level of the loading building must remain closed;
(f)slumping may only take place within the roofed night slump stand located behind the existing delivery shed and may not take place anywhere else at the site; and
(g)trucks must be retrofitted with either directional or broadband reversing beepers.
(6)This approval is granted for a term expiring on 16 October 2012.
I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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