CHURCHES and SHIRE OF COLLIE
[2015] WASAT 23
•9 FEBRUARY 2015
CHURCHES and SHIRE OF COLLIE [2015] WASAT 23
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 23 | |
| 27/02/2015 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:433/2013 | 23 OCTOBER AND 26 NOVEMBER 2014 | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 9/02/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Review allowed and conditional approval given by Tribunal | ||
| B | |||
| PDF Version |
| Parties: | DAVID CHURCHES SHIRE OF COLLIE |
Catchwords: | Town planning Development application Transport depot Rural land near townsite of Collie Transport depot a permitted land use Storage a prohibited land use Whether temporary approval justified Future planning indicated possible redevelopment of locality in five to 10 years Whether rural amenity adversely affected by proposed depot's activities Whether storage in shipping containers of hobby collection of vehicles as part of depot was permissible Tribunal allowing review and giving conditional approval for a period of five years Adverse impact on rural amenity insufficient to warrant refusal Storage of hobby vehicles found to be prohibited activity Maximum number of shipping containers on site accordingly reduced Discussion of whether suspicion of applicant's motives having regard to other business interests of semiindustrial nature with significant storage of heavy machinery relevant Tribunal holding that applicant should not be presumed to be about to break the law with respect to his conditions of planning approval Words and phrases: 'transport depot' |
Legislation: | Planning and Development Act 2005 (WA) Shire of Collie Local Planning Scheme No 5 |
Case References: | Nil |
Orders | On the application heard on 23 October and 26 November 2014 before Senior Member Peter McNab, it is on 27 February 2015 ordered that:,1. The review is allowed and the decision under review is set aside.,2. In lieu thereof, there will be a grant of temporary development approval for a transport depot at No 51 Patstone Road in the Shire of Collie, to run from 9 February 2015, in accordance with the conditions set out in the schedule below.,3. In lieu thereof, there will be a grant of temporary development approval for a transport depot at No 51 Patstone Road in the Shire of Collie, to run from 9 February 2015, in accordance with the conditions set out in the schedule below.,SCHEDULE OF CONDITIONS,1) At all times, the development the subject of this planning approval must comply with the definition of 'Transport Depot' as contained in Schedule 1 of the Shire of Collie Local Planning Scheme No 5.,2) All development shall be in accordance with the approved development plans which form part of this planning approval.,3) This is a temporary planning approval and the land use and development the subject of this temporary approval must cease five (5) years from the date of this approval, at which time this approval will expire pursuant to cl 10.6 of the Shire of Collie Local Planning Scheme No 5.,4) The building identified as Workshop 1 in Appendix 1 of the Consolidated Application is excluded from this approval.,5) Unless subject to the approval of any subsequent application made before the expiry of this approval as outlined in condition 3 above or, alternatively, subject to approval for an alternative use, upon the cessation of operations under this approval, all buildings and improvements inconsistent with rural use shall be removed from the property and the site restored to its previous rural use within six (6) months from the date of expiry of this approval.,6) With the building permit application, a landscaping plan must be submitted for the approval of the Shire of Collie. The landscape plan must address the following:,6.1 A site plan of all existing and all proposed development with natural and finished ground levels;,6.2 The location, species and size of existing vegetation and vegetation to be removed;,6.3 Arrangements for the replacement of any existing vegetation, if any, identified as being removed for the construction of a crossover and intersection treatment;,6.4 Exact species, location and number of proposed plants;,6.5 A key or legend detailing proposed species type grouped under the subheadings of tree, shrub and ground cover;,6.6 Mulching or similar treatments of garden beds including edges (if any);,6.7 Details of proposed maintenance of landscaped areas including the source of water supply and proposed responsibility for maintenance;,6.8 Treatment of paved areas (parking and pedestrian areas); and,6.9 Fence material, height and treatment.,7) Within six (6) months of the date of this approval, or such longer period as agreed with the Shire of Collie, the landscaped area(s) must be planted, established and watered in accordance with the endorsed landscape plan(s). These areas must be maintained as landscaped areas at all times and to the satisfaction of the Shire of Collie.,8) There shall not be greater than thirty (30) sea containers onsite at any given time. Any sea containers permanently on site shall not store materials other than those which are incidental to the operation of the transport depot.,9) Materials being transferred, not incidental to the operation of the transport site, shall not be present onsite for a period longer than three (3) consecutive months.,10) No processing of materials shall occur onsite, including the dismantling of parts for distribution.,11) Upon entering the site, no machinery or parts stored onsite shall have traces of contaminants present.,12) Before the development is operational, a minimum of ten (10) car parking bays must be provided on the land the subject of this planning approval and to the satisfaction of the Shire of Collie.,13) Goods or materials must not be stored within the parking or landscaping area, or within access driveways at any time.,14) Prior to development of the site, a Transport Statement, to the extent necessary, shall be submitted for approval to the Shire of Collie in accordance with the Western Australian Planning Commission's Transport Assessment Guidelines for Development.,15) Before the development is operational, an intersection treatment design shall be submitted for approval to the Shire that is designed to Main Roads WA standards for the following:,Turning movements of the largest vehicle;,Pavement upgrade based on projected usage;,Intersection is to be kerbed and asphalted, for the section of Patstone Road that is affected;,Tree clearing to allow for Safe Intersection Sight Distance (SISD); and,Drainage to allow for an ARI 1:5 year event.,This plan shall be submitted along with any recommendations of the approved Transport Statement and the approved design shall be constructed and implemented to the satisfaction of the Shire of Collie.,16) Before the development is operational, a stormwater system must be designed and constructed in accordance with the Shire of Collie's Local Planning Policy: Stormwater Discharge from Building Sites. All stormwater generated by the proposed development must be retained and disposed of onsite. Detailed design plans of the proposed stormwater management must be submitted for approval prior to the development commencing.,17) Reticulated sewerage is not available to the subject site. Prior to commencing development, an application to construct or install an apparatus for the treatment of sewage and the disposal of effluent and liquid wastes must be submitted for the approval of the Shire of Collie's Environmental Health Services in accordance with the Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA).,18) No development shall occur within the Collie Basin Boundary as indicated on the Collie Basin Structure Plan 1992, without the prior approval of the Department of Mines and Petroleum. |
Summary | The applicant was refused approval by the Shire of Collie for the development of a transport depot (with two large sheds) on rural land just outside of the townsite of Collie, and just a few kilometres from the town's light industrial area. The Shire of Collie was worried about the effect on rural amenity and whether the development would hamper its long term, or strategic, planning for the area. That planning indicated that in the next five to 10 years the land might be redeveloped for either industrial or rural residential use. Also of significant concern for the Shire of Collie was the applicant's existing business interests in the town which were, it appeared, semi-industrial in nature and involved significant storage of heavy equipment, machinery and other goods on various sites.,The applicant eventually withdrew from consideration the larger of the two sheds and agreed that, if planning approval were to be given, it would be a temporary approval, for five years. This would avoid any conflict with the Shire of Collie's strategic planning. A transport depot was a use capable of approval for the site, but storage was a prohibited use.,The proposed development was well set back to the rear of the site (which abutted State forest) and would occupy less than half of the land with, over time, significant visual screening of the operation achieved by the planting and growth of vegetation.,The Tribunal allowed the review and gave conditional planning approval for the transport depot on a five year basis. The Tribunal was of the view that the proposed activities for the site, including the machinery and vehicles identified and the storage of shipping containers, were within the core concepts of what was commonly understood by planners to constitute a transport depot. The Tribunal did not, however, agree that the personal storage in shipping containers on the site of the applicant's personal or hobby collection of certain racing cars would be permissible under the Shire of Collie's town planning scheme, and the maximum number of shipping containers on site was accordingly reduced.,The Tribunal held that the likely vehicle movements, and the noise and visual impacts (such as they were) were insufficient to warrant refusal of the development. Moreover, the use of the land in this rural area as a transport depot with all that that entailed was contemplated by the Shire of Collie's town planning scheme. Further, the temporary approval and the relatively easy visual inspection of activities on the site meant that the applicant had a powerful incentive to comply with the approval and the conditions attaching to it. The Tribunal said that in the ordinary case, successful applicants should not be assumed to be about to break the law by not complying with their conditions of their planning approval.,After resolving a number of differences between the parties on the conditions to be attached to the approval, the Tribunal gave conditional approval for the proposed depot, to run for a period of five years. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHURCHES and SHIRE OF COLLIE [2015] WASAT 23 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 23 OCTOBER AND 26 NOVEMBER 2014 DELIVERED : 9 FEBRUARY 2015 PUBLISHED : 27 FEBRUARY 2015 FILE NO/S : DR 433 of 2013 BETWEEN : DAVID CHURCHES
- Applicant
AND
SHIRE OF COLLIE
Respondent
Catchwords:
Town planning Development application Transport depot Rural land near townsite of Collie Transport depot a permitted land use Storage a prohibited land use Whether temporary approval justified Future planning indicated possible redevelopment of locality in five to 10 years Whether rural amenity adversely affected by proposed depot's activities Whether storage in shipping containers of hobby collection of vehicles as part of depot was permissible Tribunal allowing review and giving conditional approval for a period of five years Adverse impact on rural amenity insufficient to warrant refusal Storage of hobby vehicles found to be prohibited activity Maximum number of shipping containers on site accordingly reduced Discussion of whether suspicion of applicant's motives having regard to other business interests of semiindustrial nature with significant storage of heavy machinery relevant Tribunal holding that applicant should not be presumed to be about to break the law with respect to his conditions of planning approval Words and phrases: 'transport depot'
Legislation:
Planning and Development Act 2005 (WA)
Shire of Collie Local Planning Scheme No 5
Result:
Review allowed and conditional approval given by Tribunal
Summary of Tribunal's decision:
The applicant was refused approval by the Shire of Collie for the development of a transport depot (with two large sheds) on rural land just outside of the townsite of Collie, and just a few kilometres from the town's light industrial area. The Shire of Collie was worried about the effect on rural amenity and whether the development would hamper its long term, or strategic, planning for the area. That planning indicated that in the next five to 10 years the land might be redeveloped for either industrial or rural residential use. Also of significant concern for the Shire of Collie was the applicant's existing business interests in the town which were, it appeared, semi-industrial in nature and involved significant storage of heavy equipment, machinery and other goods on various sites.
The applicant eventually withdrew from consideration the larger of the two sheds and agreed that, if planning approval were to be given, it would be a temporary approval, for five years. This would avoid any conflict with the Shire of Collie's strategic planning. A transport depot was a use capable of approval for the site, but storage was a prohibited use.
The proposed development was well set back to the rear of the site (which abutted State forest) and would occupy less than half of the land with, over time, significant visual screening of the operation achieved by the planting and growth of vegetation.
The Tribunal allowed the review and gave conditional planning approval for the transport depot on a five year basis. The Tribunal was of the view that the proposed activities for the site, including the machinery and vehicles identified and the storage of shipping containers, were within the core concepts of what was commonly understood by planners to constitute a transport depot. The Tribunal did not, however, agree that the personal storage in shipping containers on the site of the applicant's personal or hobby collection of certain racing cars would be permissible under the Shire of Collie's town planning scheme, and the maximum number of shipping containers on site was accordingly reduced.
The Tribunal held that the likely vehicle movements and the noise and visual impacts (such as they were) were insufficient to warrant refusal of the development. Moreover, the use of the land in this rural area as a transport depot with all that that entailed was contemplated by the Shire of Collie's town planning scheme. Further, the temporary approval and the relatively easy visual inspection of activities on the site meant that the applicant had a powerful incentive to comply with the approval and the conditions attaching to it. The Tribunal said that in the ordinary case, successful applicants should not be assumed to be about to break the law by not complying with their conditions of their planning approval.
After resolving a number of differences between the parties on the conditions to be attached to the approval, the Tribunal gave conditional approval for the proposed depot, to run for a period of five years.
Category: B
Representation:
Counsel:
Applicant : Mr C Wallace
Respondent : Mr J Algeri (Acting as Agent)
Solicitors:
Applicant : Lavan Legal
Respondent : Altus Planning & Appeals
Case(s) referred to in decision(s):
Introduction
1 This review concerns a change of use and development approval for a proposed transport depot at No 51 Patstone Road (subject land or site) in the Shire of Collie (Shire or respondent). Currently, the subject land is zoned as a category of rural land; a transport depot is capable of approval for the site under the Shire of Collie Local Planning Scheme No 5 (LPS 5). As will become clearer below, by the time of the second day of the hearing in Perth in late November 2014, the proposal had been significantly amended and consolidated from what was originally considered (and refused) by the Shire.
2 Such amendment and consolidation was, in part, an attempt to address the Shire's concerns, particularly their apprehension that the applicant was in effect consolidating two businesses with a very large storage component of industrial-type equipment.
3 The Tribunal allowed the review and gave conditional approval for the proposed development for a period of five years. What follows is a formally revised and edited version of the reasons for decision delivered orally by the Tribunal.
Applicant's proposal
4 The applicant's proposal for a transport depot is set out in detail at pages 2 to 5 of the amended and consolidated development proposal dated 14 November 2014 (together with an associated site plan). In general, the proposal covers:
1) the size of the operation, in terms of staff;
2) vehicle movements onto the site;
3) access road details;
4) the business sources of the various plant and equipment, that is to say, from the separate firms 'R32 Construction' and 'Collie Steel', both of which are associated with the applicant;
5) the size and location of the operation in relation to the site;
6) a list of vehicle types, namely:
a) transport vehicles;
b) construction vehicles; and
c) agricultural vehicles.
7) the main and incidental buildings on the site, in particular, two large sheds (as was originally proposed), namely:
a) a transfer shed/workshop at 14.25 metres high; and
b) a maintenance shed at 10 metres high,
8) details of the goods or materials to be transferred on site (for recycling purposes, to be undertaken at another site);
9) the machinery to be stored on site;
10) details of shipping (or sea) containers located on the site, in the range from 30 to 50, with a potential maximum of 50, including approximately eight shipping containers for the storing of personal motor vehicles.
5 I mention that the second shed was proposed to have been partly built from eight shipping containers. I will return in a moment to the question of the sheds and the changes proposed by the applicant in relation thereto. As to the personal vehicles mentioned above, these are apparently Nissan Skyline racing cars, part of a personal collection owned by the applicant. I will also return to this matter below.
6 In addition, the amended proposal and site plan gave details of the site design, landscaping and proposed vegetation cover (for screening of the depot). Included also were various photomontages that had been produced to illustrate the sheds and their context after reasonable growth of the proposed vegetation screening.
7 Importantly, the proposal is offered on a time-limited or temporary basis of some five years. I will return to this matter below.
Site details
8 The lot is currently vacant, comprising cleared land of approximately 27.5 hectares, with approximately 11.8 hectares, or about 44% of the site, dedicated to the proposed transport depot, which is contained at the rear of the site, abutting State forest. The site is in close proximity - about half a kilometre - from the Collie Light Industrial Area (LIA). The site is otherwise surrounded by a mixture of cleared and uncleared rural land, including unallocated State land. There are three or four rural residences located nearby to the proposed entrance to the site.
Respondent's case and grounds of refusal
9 The respondent had refused an earlier iteration of the proposed development because of its alleged inconsistency with the Shire ofCollie Local Planning Strategy 2009, and because of concerns with preserving the rural character and amenity of the locality. Subsequently, the respondent would also express concerns as to the significant element of storage in the proposal and whether, if approval were to be given, there would be created a de facto industrial land use in the locality.
Planning framework
10 The subject land is zoned Rural 1 under LPS 5 with objectives for the zone that include retaining the rural character and amenity of the locality and avoiding land use conflicts. A transport depot, which is a defined term in LPS 5 (see below), is a use in respect of which approval may be given in this Rural 1 zone. 'Storage', which is also a defined term in LPS 5, on the other hand, is a prohibited land use for this zone. So-called 'variations' in standards are sought by the applicant with respect to the rear setback of the development and the height of the sheds, as both sheds exceed an 8 metre indicative maximum height prescribed under LPS 5.
11 The definition of 'transport depot' in LPS 5 is as follows:
'transport depot' means any land or buildings used for the garaging of motor vehicles used or intended to be used for carrying goods or persons, or for the transfer of goods or persons from one motor vehicle to another of such motor vehicle [(]and includes ambulance depot, fire brigades depot and milk depot) and includes maintenance, management and repair of the vehicles used, but not of other vehicles, and may include overnight accommodation on-site for the transport workers[.]
12 A number of instruments combine to establish the strategic planning framework. These are the Shire ofCollie Local Planning Strategy 2009 (already mentioned), the Collie Supertown Townsite Growth Plan 2012 and the Collie Basin Structure Plan 1992, which regulates development within the Coal Basin Boundary. It is common ground that these instruments, so far as they are relevant, generally indicate that within the next five to 10 years, rezoning of the land may potentially take place to cater for either rural residential or industrial development.
Further amendments to the depot proposal
13 In the result, the setback variations are not in issue so far as the respondent is concerned. In addition, the applicant has now withdrawn from this application any development in respect of the proposed first (or larger) shed. If that proposal is proceeded with in the future then this matter will come back to the Shire for assessment.
14 I understand, however, that the Shire has continuing concerns about the 2 metre variation sought with respect to the remaining shed, although such concerns were expressed in the context of there being two sheds originally.
15 For convenience, I mention at this point that the evidence before the Tribunal suggested that a height of 10 metres was necessary, or at least strongly desirable, for the proposed business to operate efficiently, having regard to the size of some of the equipment contemplated for the transport depot. Given the shed's position on site – that is, the remaining shed, as it turns out - and the screening to be developed over time, in my view, on balance, if the proposal is to otherwise proceed then the remaining shed should be approved with the height variation sought.
Main issues
16 The main issues in the review may therefore be summarised as follows:
1) Is the amended proposal capable of being classified as a 'transport depot' under LPS 5?
2) Is any component of the proposal sufficient in scope to warrant characterisation as a prohibited separate use of storage?
3) If the answer to question 1) is 'yes' and the answer to question 2) is 'no', should approval be issued:
a) given the aims and objectives for the zone and any further development requirement, particularly the issue of maintaining rural amenity; and
b) having regard to the longer term strategic planning for the Shire?
17 At the Tribunal's request, but in a move also supported by the respondent, the Tribunal heard from the proponent (Mr Churches) personally when the Tribunal convened in Collie in October 2014. Originally, counsel for the applicant proposed only to call a planner to give evidence in the case for the applicant.
18 It was this evidence of Mr Churches that caused the development proposal to be amended and consolidated.
19 In Perth, on the second day of the adjourned hearing, the Tribunal then heard from the two planners, Mr Doyle engaged by the applicant and Mr Hockly engaged by the respondent. In addition, a joint expert witness statement was received from the expert planners, amongst other necessary documents.
20 Whilst in Collie, the Tribunal, accompanied by the parties, inspected the subject land, the nearby LIA, Patstone Road leading back to Collie, and a recently approved transport depot at Lot 3 Williams Road in the Shire, said by the applicant to be a precedent development favouring his position.
Summary of the parties' respective positions
21 The applicant submitted that the amended proposal now 'adequately outline[d] the [full] nature and extent of the proposal', and that the proposed development was consistent with LPS 5. Further, the applicant contended that the applicant's expert planner's clarification (in both his original and joint evidence) of the incidental aspects of the business should be accepted, noting also the experts' joint views that these so-called incidental matters could be largely regulated by the imposition of suitable conditions. (That this appears to be possible is reflected in the draft conditions, considered below.)
22 In addition, but only to some extent, the applicant relied as a precedent on the approval given by the Shire in 2014 for a transport depot on Lot 3 Williams Road. This land is zoned Rural 2, the same zoning for land abutting the subject land on the western side of Patstone Road.
23 As I have indicated, the main concern of the respondent reflects a longstanding doubt as to the existing business interests of the applicant and his operations and those of his business associates in the Shire, and whether the alleged significant storage components of the proposal, including personal storage of vehicles in containers, would not be incidental uses but, rather, separate land uses. If so, as mentioned above, such uses are prohibited - as 'X' uses for this zoning (Rural 1) under LPS 5. The storage issue, whether incidental or not, also, it is said by the respondent, goes to the scale of the transport depot and the extent to which the development presents as a non-rural or even industrial use.
Analysis and findings
24 It is plain that a literal reading of the definition of 'transport depot' in LPS 5 would throw doubt on at least some of the elements of the applicant's proposed transport depot. However, the definition must be read in a practical and purposive way, having particular regard to the scale of what is proposed and the practical impact on the surrounding amenity caused by the proposed development in the immediate locality. Such a reading, on the facts of this case, would favour the applicant.
25 Moreover, there are textual indications in the definition itself that support this view. For example, the use of the word 'includes' is used by the drafter to extend the use of permitted activities to include such activities as a 'milk depot'. This suggests that no narrowing down of the use class was intended by the drafter.
26 Here, I am satisfied that:
1) the use of shipping containers (a common enough sight in transport depots, as the Tribunal observed in relation to the approved Williams Road transport depot);
2) the use thereof for the storage of equipment and items directly associated with a transport depot;
3) the parking of industrial vehicles and their mechanical attachments of the nature indicated; and
4) the temporary storage of goods for transfer to other vehicles,
- all fall within the central core of what town planners would ordinarily regard as transport depot uses and activities, or uses and activities reasonably incidental thereto. In other words, all of the proposed activities, other than the personal storage of certain Nissan racing cars (apparently proposed as a more or less permanent, and a not insignificant use of the land for hobby or recreational purposes) would be permissible on the site.
27 Conditional approval of the proposal is therefore indicated.
28 The suspicions of the respondent about the applicant's motives, and his or his associates' 'true' business activities, cannot be allowed to colour an objective analysis of the proposal. It must not be assumed, at least in the ordinary case, that an applicant is about to break the law in terms of any approval granted and, in this regard, if cause for suspicion arose on the respondent's part, the enforcement obligations imposed upon the Shire, particularly as to the monitoring of any alleged storage of excessive or superfluous industrial material, would appear to be not unduly onerous, as visual inspections over time (from public land) would confirm whether there were any problems in this regard. Likewise, the shipping containers may presumably be opened and inspected at random, at least for good cause.
29 Moreover, and importantly, the five year temporary approval which the Tribunal will impose is a powerful incentive to operate the site within both the letter and the spirit of the conditional approval given. If the respondent's fears came to pass, in that the site had been turned into nothing more than a scrap metal yard, then the applicant risks prosecution and the closing down of the site without prospects of renewal of planning approval. Further, a time-limited approval of five years will mean that the long term strategic planning of the Shire with respect to this site will not be relevantly prejudiced.
30 As the applicant has withdrawn from consideration the large shed (workshop) building, it is unnecessary to consider this aspect of the development approval, except to note that this alteration lessens the overall visual impact of the development.
31 The Tribunal is also satisfied that neither the relatively small increase in vehicle movements in Patstone Road nor the visual and noise impacts of the site, such as they are, would warrant refusal of the development. There will be significant screening of the site over time, and the depot area will be well set back at the rear of the subject land. In addition, the site, in effect, will be monitored over the next five years and precise records can be kept of matters such as alleged excessive vehicle movements or noise complaints, or other amenity issues (if any).
32 Ultimately, the rural character of the area must be judged in light of the fact that a transport depot, with all that that entails, is a permitted use (with planning approval) in this particular zoning and, in my view, the applicant has taken reasonable steps to ameliorate the impact of the development such that it will not present, over time, as a highly visible industrial site.
33 I should also add that, on balance, I am prepared to accept the applicant's evidence that there are practical and logistical difficulties in finding a comparable site for the development of this particular business in the LIA or, for that matter, elsewhere in the Shire. With respect, the Shire has produced no clear evidence to the contrary, only suggestions that it may be possible.
34 In the event, I have not found it necessary to discuss the relevance, if any, of the Williams Road transport depot approval. Suffice it to say that that transport depot is located on differently zoned land and was approved in quite different circumstances, in that it caters specifically for certain nearby coal mining activities. In addition, the conditions imposed on the Williams Road transport depot are, generally speaking, far less onerous than those proposed for the applicant's land. They certainly do not include matters such as protecting rural amenity by significant vegetation planting for screening purposes.
35 I turn then to the issue of suitable conditions to be imposed on the development.
Draft conditions
36 In early December 2014, the respondent filed with the Tribunal the following revised set of conditions:
1. At all times, the development the subject of this planning approval must comply with the definition of 'Transport Depot' as contained in Schedule 1 of the Shire of Collie Local Planning Scheme No 5.
2. All development shall be in accordance with the approved development plans which form part of this planning approval.
3. This is a temporary planning approval and the land use and development the subject of this temporary approval must cease five (5) years from the date of this approval, at which time this approval will expire pursuant to cl 10.6 of the Shire of Collie Local Planning Scheme No 5.
4. The building identified as Workshop 1 in Appendix 1 of the Consolidated Application is excluded from [this] approval as the scale is not appropriate in the Rural zone and its purpose is not integral to the function of the transport depot.
5. Unless subject to the approval of any subsequent application made before the expiry of this approval as outlined in condition 3 above or, alternatively, subject to approval for an alternative use, upon [the cessation of operations under] this approval[,] all buildings and improvements inconsistent with rural use shall be removed from the property and the site restored to its previous rural use within six (6) months from the date of expiry of this approval.
6. With the building permit application, a landscaping plan must be submitted for the approval of the Shire of Collie. The landscape plan must address the following:
• A site plan of all existing and all proposed development with natural and finished ground levels;
• The location, species and size of existing vegetation and vegetation to be removed;
• Arrangements for the replacement of any existing vegetation, if any, identified as being removed for the construction of a crossover and intersection treatment;
• Exact species, location and number of proposed plants;
• A key or legend detailing proposed species type grouped under the subheadings of tree, shrub and ground cover;
• Mulching or similar treatments of garden beds including edges;
• Details of the source of the water supply and proposed responsibility for maintenance;
• Treatment of paved areas (parking and pedestrian areas); [and]
• Fence material, height and treatment.
7. Within six (6) months of the date of this approval, or such longer period as agreed with the Shire of Collie, the landscaped area(s) must be planted, established and watered in accordance with the endorsed landscape plan(s). These areas must be maintained as landscaped areas at all times and to the satisfaction of the Shire of Collie.
8. [No text for condition 8 was supplied.]
9. Materials being transferred, not incidental to the operation of the transport site, shall not be present onsite for a period longer than three (3) consecutive months.
10. No processing of materials shall occur onsite, including the dismantling of parts for distribution.
11. Upon entering the site, no machinery or parts stored onsite shall have traces of contaminants present.
12. There shall not be greater than thirty (30) sea containers onsite at any given time. Any sea containers permanently on site shall not store materials other than those which are incidental to the operation of the transport depot.
13. Before the development is operational, a minimum of ten (10) car parking bays must be provided on the land the subject of this planning approval and to the satisfaction of the Shire of Collie.
14. Materials must not be located within the parking or landscaping area, or within access driveways at any time.
15. Prior to development of the site, a Transport Statement shall be submitted for approval to the Shire of Collie in accordance with the Western Australian Planning Commission's Transport Assessment Guidelines for Development.
16. Before the development is operational, an intersection treatment design shall be submitted for approval to the Shire that is designed to Main Roads WA standards for the following:
• Turning movements of the largest vehicle;
• Pavement upgrade based on projected usage;
• Intersection is to be kerbed and asphalted, for the section of Patstone Road that is affected;
• Tree clearing to allow for Safe Intersection Sight Distance (SISD); and
• Drainage to allow for [an] ARI 1:5 year event.
This plan shall be submitted along with any recommendations of the approved Transport Statement and the approved design shall be constructed and implemented to the satisfaction of the Shire of Collie.
17. Before the development is operational, a stormwater system must be designed and constructed in accordance with the Shire of Collie's Local Planning Policy: Stormwater Discharge from Building Sites. All stormwater generated by the proposed development must be retained and disposed of onsite. Detailed design plans of the proposed stormwater management must be submitted for approval prior to the development commencing.
18. Reticulated sewerage is not available to the subject site. Prior to commencing development, an application to construct or install an apparatus for the treatment of sewage and the disposal of effluent and liquid wastes must be submitted for the approval of the Shire of Collie's Environmental Health Services in accordance with the Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA).
19. No development shall occur within the Collie Basin Boundary as indicated on the Collie Basin Structure Plan 1992, without the prior approval of the Department of Mines and Petroleum.
37 The applicant lodged alternative draft conditions in response to the above document.
Discussion and determination of the conditions to be imposed
38 Condition 1, which requires compliance with the land use definition of 'transport depot' in LPS 5 (which was also imposed on an unrelated applicant in the Williams Road approval) has been agreed between the parties. It is strictly otiose, but I will allow it in the circumstances.
39 Conditions 2 to 5 have been largely agreed as between the parties.
40 In relation to condition 4, in my view it is unnecessary to add any rider or explanation as to why the workshop shed is now excluded from the application for development approval and the condition should simply note that it is so excluded from the present approval, making it clear that the applicant may always apply to the Shire in the future for this additional development or use, which is the basic intention of the condition.
41 As to condition 6 (which deals with the landscaping plan), in my view, there is no reason, as the respondent proposes, why the plan cannot come into the Shire with the building permit application, and this obligation will be imposed. There is a very marginal difference between the parties as to the wording of dot point 3 in condition 6 (now 6.3) dealing with crossover vegetation, a matter which was raised in the dying stages of the hearing in November 2014. I prefer, on balance, the respondent's wording, and that will be imposed.
42 On the sixth dot point in condition 6 (now 6.6), I cannot see why details of the mulching of any garden beds cannot be included, with the addition of the words 'if any'; that is, if there are to be garden beds then they must have details of mulching arrangements.
43 In relation to 6.7, I prefer the applicant's wording relating to the details of proposed maintenance over the respondent's formulation; in any event, the differences between them are fairly marginal. Thus, this obligation (6.7) will now read:
Details of proposed maintenance of landscaped areas including the source of water supply and proposed responsibility for maintenance.
44 In relation to the final dot point in condition 6 (now 6.9), in my view, there is no good reason why fence materials and treatments should not be an additional factor addressed in the landscaping plan, and this obligation will be inserted into condition 6.
45 Condition 7 (dealing with the time frame for planting) has been agreed between the parties in the form drafted by the respondent, and that condition will be imposed.
46 Condition 8 in the applicant's version, and condition 12 in the respondent's version of the draft conditions, respectively deal with the number of shipping or sea containers. There is a difference in the maximum number of such containers; 50 contended for by the applicant and 30 contended for by the respondent. As I have already indicated above, the proposed storage of the applicant's collection of personal or hobby racing cars will not be permitted because it would be a separate and prohibited use. That possibility took up eight sea containers, and 50 containers was always to be a peak figure. In these circumstances, I cannot see any reason to go above 30 containers in what will be condition 8. (The option is always open for the applicant to make out a case to the Shire for the grant of a fresh planning approval to increase the maximum number of containers.)
47 The following three conditions (conditions 9 to 11) are disputed by the applicant. Condition 9 deals with a maximum put down of three months for storage in connection with the transport depot's transfer of materials. Condition 10 prohibits the processing of materials on site. Condition 11 prohibits contaminants coming onto the site on machinery or parts.
48 In my view, these are all reasonable regulatory requirements to prevent any creep towards substantive industrial-type activities or excessive incidental or temporary storage of transferred materials; they will be attached to the approval.
49 Condition 13 (now renumbered as condition 12), which deals with car bays, has been agreed between the parties.
50 Condition 14 (now renumbered as condition 13, which was the applicant's proposed draft condition 10) seeks to limit where materials may be 'stored' or 'located' on the site of the operation. I prefer a prohibition on storage, which is the applicant's suggested language, as opposed to a prohibition on materials being located in certain areas. In my view, the word 'located' is too wide in this context and 'storage' is more precise terminology.
51 Apart from one matter, the remaining draft conditions (now conditions 14 to 18) dealing with transport planning, the stormwater discharge system, onsite management of sewage, and the location of the Collie Basin Boundary are all agreed between the parties.
52 In relation to draft conditions 14 and 15, the Shire calls for, in effect, a Western Australian Planning Commission template for a Transport Statement in addition to Main Roads WA design criteria for the intersection treatment.
53 Since we are dealing with a transport depot, I cannot see any reason why such a document (that is, a Transport Statement) cannot be provided by the applicant, suitably adapted to the circumstances. Hence, in the respondent's draft condition 14, the words 'to the extent necessary' will be inserted into condition 14.
Orders
54 For the reasons given above, the Tribunal makes the following orders:
1. The review is allowed and the decision under review is set aside.
2. In lieu thereof, there will be a grant of temporary development approval for a transport depot at No 51 Patstone Road in the Shire of Collie, to run from 9 February 2015, in accordance with the conditions set out in the schedule below.
3. Liberty to apply is reserved for a period of 21 days from the date of publication of these reasons.
SCHEDULE OF CONDITIONS
1. At all times, the development the subject of this planning approval must comply with the definition of 'Transport Depot' as contained in Schedule 1 of the Shire of Collie Local Planning Scheme No 5.
2. All development shall be in accordance with the approved development plans which form part of this planning approval.
3. This is a temporary planning approval and the land use and development the subject of this temporary approval must cease five (5) years from the date of this approval, at which time this approval will expire pursuant to cl 10.6 of the Shire of Collie Local Planning Scheme No 5.
4. The building identified as Workshop 1 in Appendix 1 of the Consolidated Application is excluded from this approval.
5. Unless subject to the approval of any subsequent application made before the expiry of this approval as outlined in condition 3 above or, alternatively, subject to approval for an alternative use, upon the cessation of operations under this approval, all buildings and improvements inconsistent with rural use shall be removed from the property and the site restored to its previous rural use within six (6) months from the date of expiry of this approval.
6. With the building permit application, a landscaping plan must be submitted for the approval of the Shire of Collie. The landscape plan must address the following:
6.1 A site plan of all existing and all proposed development with natural and finished ground levels;
6.2 The location, species and size of existing vegetation and vegetation to be removed;
6.3 Arrangements for the replacement of any existing vegetation, if any, identified as being removed for the construction of a crossover and intersection treatment;
6.4 Exact species, location and number of proposed plants;
6.5 A key or legend detailing proposed species type grouped under the subheadings of tree, shrub and ground cover;
6.6 Mulching or similar treatments of garden beds including edges (if any);
6.7 Details of proposed maintenance of landscaped areas including the source of water supply and proposed responsibility for maintenance;
6.8 Treatment of paved areas (parking and pedestrian areas); and
6.9 Fence material, height and treatment.
7. Within six (6) months of the date of this approval, or such longer period as agreed with the Shire of Collie, the landscaped area(s) must be planted, established and watered in accordance with the endorsed landscape plan(s). These areas must be maintained as landscaped areas at all times and to the satisfaction of the Shire of Collie.
8. There shall not be greater than thirty (30) sea containers onsite at any given time. Any sea containers permanently on site shall not store materials other than those which are incidental to the operation of the transport depot.
9. Materials being transferred, not incidental to the operation of the transport site, shall not be present onsite for a period longer than three (3) consecutive months.
10. No processing of materials shall occur onsite, including the dismantling of parts for distribution.
11. Upon entering the site, no machinery or parts stored onsite shall have traces of contaminants present.
12. Before the development is operational, a minimum of ten (10) car parking bays must be provided on the land the subject of this planning approval and to the satisfaction of the Shire of Collie.
13. Goods or materials must not be stored within the parking or landscaping area, or within access driveways at any time.
14. Prior to development of the site, a Transport Statement, to the extent necessary, shall be submitted for approval to the Shire of Collie in accordance with the Western Australian Planning Commission's Transport Assessment Guidelines for Development.
15. Before the development is operational, an intersection treatment design shall be submitted for approval to the Shire that is designed to Main Roads WA standards for the following:
• Turning movements of the largest vehicle;
• Pavement upgrade based on projected usage;
• Intersection is to be kerbed and asphalted, for the section of Patstone Road that is affected;
• Tree clearing to allow for Safe Intersection Sight Distance (SISD); and
• Drainage to allow for an ARI 1:5 year event.
This plan shall be submitted along with any recommendations of the approved Transport Statement and the approved design shall be constructed and implemented to the satisfaction of the Shire of Collie.
16. Before the development is operational, a stormwater system must be designed and constructed in accordance with the Shire of Collie's Local Planning Policy: Stormwater Discharge from Building Sites. All stormwater generated by the proposed development must be retained and disposed of onsite. Detailed design plans of the proposed stormwater management must be submitted for approval prior to the development commencing.
17. Reticulated sewerage is not available to the subject site. Prior to commencing development, an application to construct or install an apparatus for the treatment of sewage and the disposal of effluent and liquid wastes must be submitted for the approval of the Shire of Collie's Environmental Health Services in accordance with the Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA).
18. No development shall occur within the Collie Basin Boundary as indicated on the Collie Basin Structure Plan1992, without the prior approval of the Department of Mines and Petroleum.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER
0
2