Cleanaway Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel
[2017] WASAT 74
•4 APRIL 2017
CLEANAWAY PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 74
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 74 | |
| 22/05/2017 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:161/2016 | 23 TO 25 JANUARY AND 15 FEBRUARY 2017 | |
| Coram: | MR P DE VILLIERS (MEMBER) MS L EDDY (MEMBER) | 4/04/17 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed and amended application refused | ||
| B | |||
| PDF Version |
| Parties: | CLEANAWAY PTY LTD PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL CITY OF BELMONT |
Catchwords: | Town planning Development application Waste transfer station Existing land uses in the area Amenity provisions of local planning scheme Separation distances 'Sensitive' land uses Strategic planning of precinct KewdaleHazelmere Integrated Masterplan Odour impacts Dust impacts Flies, birds and vermin Odour impacts of loaded trailers Odour modelling Adequacy of proposed odour management procedures Leave for later consideration a nonincidental aspect of development |
Legislation: | City of Belmont Local Planning Scheme No 15, cl 4.2, cl 4.3.2, cl 5.13, cl 5.13.1, Sch 1 Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 67 Planning and Development Act 2005 (WA), s 257B(2) |
Case References: | Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent, made on 27 April 2016, is set aside and instead a decision to refuse the amended application (as described in the applicant's Consolidated Statement of Proposed Development lodged with the Tribunal on 1 February 2017) is substituted. |
Summary | In August 2015, an application was lodged with the City of Belmont seeking approval for a waste transfer station at 68 Noble Street, Kewdale.,In April 2016, the application was refused by the respondent, the Presiding Member of the Metro Central Joint Development Assessment Panel, for a number of reasons which related to the respondent's determination that the proposed development was incompatible with both existing established land uses in the area and the strategic planning of the precinct.,The applicant subsequently made an application to the Tribunal seeking a review of that decision.,The wide range of issues put forward by the respondent and the intervener were considerably narrowed by the joint statements of the expert witnesses and the Tribunal determined that the following substantive issues required a detailed assessment:,Whether the waste stored both overnight and in the afternoon/weekend in transfer trailers associated with the proposed waste transfer station would adversely impact on, and was therefore incompatible with, established land uses in the locality as a result of odour emissions.,Whether the proposed waste transfer station was inconsistent with the strategic planning for the Kewdale industrial area as a transport and logistics hub in the state.,Matters raised by the intervener.,In terms of consistency with the strategic planning for the Kewdale industrial area the Tribunal found that while the proposed use was not an objectionable use in the Industrial zone this finding was subject to meeting the amenity provisions of the local planning scheme.,In terms of matters raised by the intervener the Tribunal found that any potential risk associated with flies, birds and vermin could be managed by way of appropriate conditions on any approval.,In regard to waste stored in transfer trailers the Tribunal found that it was not appropriate to attempt to control the potential impacts through conditions which would leave for later consideration a nonincidental aspect of the proposed development.,The Tribunal was not satisfied that there was sufficient basis, on the evidence before it, to be able to find that this aspect of the proposed development would not cause an adverse impact on amenity beyond the boundaries of the site.,As a result the Tribunal concluded that the proposed development did not comply with the amenity provisions of the local planning scheme and determined that the correct and preferable decision was to refuse the application for development approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CLEANAWAY PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 74 MEMBER : MR P DE VILLIERS (MEMBER)
- MS L EDDY (MEMBER)
- Applicant
AND
PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
CITY OF BELMONT
Intervener
Catchwords:
Town planning Development application Waste transfer station Existing land uses in the area Amenity provisions of local planning scheme Separation distances 'Sensitive' land uses Strategic planning of precinct KewdaleHazelmere Integrated Masterplan Odour impacts Dust impacts Flies, birds and vermin Odour impacts of loaded trailers Odour modelling Adequacy of proposed odour management procedures Leave for later consideration a nonincidental aspect of development
Legislation:
City of Belmont Local Planning Scheme No 15, cl 4.2, cl 4.3.2, cl 5.13, cl 5.13.1, Sch 1
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 67
Planning and Development Act 2005 (WA), s 257B(2)
Result:
Application for review dismissed and amended application refused
Summary of Tribunal's decision:
In August 2015, an application was lodged with the City of Belmont seeking approval for a waste transfer station at 68 Noble Street,Kewdale.
In April 2016, the application was refused by the respondent, the Presiding Member of the Metro Central Joint Development Assessment Panel, for a number of reasons which related to the respondent's determination that the proposed development was incompatible with both existing established land uses in the area and the strategic planning of the precinct.
The applicant subsequently made an application to the Tribunal seeking a review of that decision.
The wide range of issues put forward by the respondent and the intervener were considerably narrowed by the joint statements of the expert witnesses and the Tribunal determined that the following substantive issues required a detailed assessment:
- • Whether the waste stored both overnight and in the afternoon/weekend in transfer trailers associated with the proposed waste transfer station would adversely impact on, and was therefore incompatible with, established land uses in the locality as a result of odour emissions.
• Whether the proposed waste transfer station was inconsistent with the strategic planning for the Kewdale industrial area as a transport and logistics hub in the state.
• Matters raised by the intervener.
In terms of matters raised by the intervener the Tribunal found that any potential risk associated with flies, birds and vermin could be managed by way of appropriate conditions on any approval.
In regard to waste stored in transfer trailers the Tribunal found that it was not appropriate to attempt to control the potential impacts through conditions which would leave for later consideration a nonincidental aspect of the proposed development.
The Tribunal was not satisfied that there was sufficient basis, on the evidence before it, to be able to find that this aspect of the proposed development would not cause an adverse impact on amenity beyond the boundaries of the site.
As a result the Tribunal concluded that the proposed development did not comply with the amenity provisions of the local planning scheme and determined that the correct and preferable decision was to refuse the application for development approval.
Category: B
Representation:
Counsel:
Applicant : Mr J Skinner
Respondent : Ms C Ide
Intervener : Mr P Wittkuhn
Solicitors:
Applicant : Borello Graham
Respondent : State Solicitor's Office
Intervener : McLeods
Case(s) referred to in decision(s):
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124
Introduction
1 On 12 August 2015, an application was lodged with the City of Belmont seeking approval for a waste transfer station (WTS) on a portion of 68 (Lot 301) Noble Street, Kewdale (site). It is intended that the WTS will utilise an existing triangular industrial building at the southeast corner of the lot (proposed WTS building) in order to process commercial and industrial waste. The proposal includes physical modifications to the external and internal elements of the proposed WTS building on the site, new weighbridges, a weighbridge office and changes to onsite vehicular circulation and parking.
2 In dealing with the application the City of Belmont (City) sought further information from the applicant and, following its receipt, the application was advertised from 24 February 2016 to 11 March 2016. In response to the advertising the City received 30 public submissions and six agency submissions. In addition, the City engaged Cardno to conduct a peer review of the proposed development.
3 On 27 April 2016, following the receipt of a Responsible Authority Report prepared by the City, the application was refused by the respondent, the Presiding Member of the Metro Central Joint Development Assessment Panel, for the following reasons:
1. The proposed Noxious Industry (Waste Store Facility) land use is considered to be incompatible with established land uses on the adjoining properties, and is likely to prejudice the desired future development of the precinct, contrary to the objectives of the aims of Local Planning Scheme No. 15 with particular reference to Clause 1.6 (d), (f) and (h).
2. The proposed Noxious Industry (Waste Store Facility) land use is considered to be incompatible with established land uses, and is likely to prejudice the desired future development of the precinct which is contrary to the objectives of the Industrial zone of Local Planning Scheme No. 15 with particular reference to Clause 5.13.1 (a).
3. Approval of the Noxious Industry (Waste Store Facility) land use does not constitute orderly and proper planning set out in Clause 67(b) of the Planning and Development (Local Planning Schemes) Regulations 2015 with regard to proposed Amendment No. 7 to Local Planning Scheme No. 15, which makes Waste Storage Facility a prohibited use in the Industrial zone.
4. The proposed Noxious Industry (Waste Store Facility) land use is considered contrary to Clause 67(e) of Planning and Development (Local Planning Schemes) Regulations 2015 and to the intent of the Kewdale-Hazelmere Integrated Masterplan, as it does not propose to reduce or avoid potential land use conflicts with established land uses in the locality.
5. The proposed Noxious Industry (Waste Store Facility) land use is considered contrary to Clause 67(f) of Planning and Development (Local Planning Schemes) Regulations 2015 and the definitions of 'Sensitive Land Uses' as established in Terra Spei Pty Ltd and Shire of Kalamunda[2015] WASAT 134 by acknowledging the existence of sensitive industrial land uses within the Kewdale locality, which is contrary to the intent of the Guidance for the Assessment of Environmental Factors - Separation Distances between Industrial and Sensitive Land Uses, No. 3, June 2005.
6. The proposed Noxious Industry (Waste Store Facility) land use is considered incompatible with established land uses on the adjoining properties, and is likely to prejudice the desired future development of the precinct as the act of nuisance shall extend past the bounds of the subject site from time to time, which is contrary to Clause 67(m) and (n) of Planning and Development (Local Planning Schemes) Regulations 2015.
7. The subject site is not considered a suitable location for the proposed Noxious Industry (Waste Store Facility) land use as stated in 'Reasons for Refusal 16' which is contrary to Clause 67(a), (o), (r), (s), (x), (y) and (za) of Planning and Development (Local Planning Schemes) Regulations 2015.
4 On 24 May 2016, the applicant made an application to the Tribunal seeking a review of this decision.
5 Following the hearing, the Tribunal's decision was reserved. In light of the applicant's circumstances, which relevantly included a requirement to cease its waste transfer facility operations at its current location in the City of Bayswater and commence those operations elsewhere, the Tribunal delivered its determination of the application on 4 April 2017. While the members of the Tribunal had reached agreement about the correct and preferable determination of the application in light of the evidence before it, the detail of the reasons for that determination had not yet been reduced to writing. What follows are the reasons for the Tribunal's decision in this matter.
Site and locality
6 The site is located on the southeastern side of Noble Street and is generally rectangular with the exception of the angled rear boundary which runs east/west adjacent to a railway line to the south.
7 The site has a frontage of approximately 90 metres to Noble Street and an area of approximately 2.14 hectares. It contains an administrative office structure towards the Noble Street boundary with five workshop/warehouse structures on the remainder of the site. The largest structure, encompassing three workshop/warehouses, is located in the northwest section of the site behind the administration building. The rear half of the site has one isolated workshop/warehouse towards the southwest boundary and a large triangular structure in the southeast corner of the site. It is proposed that the WTS will utilise this building, which comprises some 1741m² in area. The majority of the remainder of the site comprises circulation and hard stand with the exception of landscaping along the southwestern section of the Noble Street boundary.
8 There are two crossovers to Noble Street, one on either end of the Noble Street boundary, adjacent to the northeastern and southwestern boundaries of the site.
9 The site is currently used as a 'Transport Depot' by an operation known as KTrans WA. The transport depot operation involves 13 office staff, six warehouse staff, 17 drivers and the use of 17 prime movers and numerous trailers.
10 The adjacent land to the northeast is occupied by Wallenius Wilhelmsen Logistics Australia (WWL), an international heavy equipment transporter providing ocean freight shipping and inland distribution. The company has a fully bonded warehouse controlled by Australian Customs, spray booths and provides onsite training to clients in relation to the equipment stored at the facility. Between WWL and Abernathy Road to the north, Western Power has a significant depot which includes offices and training facilities.
11 On the northwest side of Noble Street opposite the site is R Moore and Sons, a company which inspects, tests and remanufactures diesel engine components. To the northeast of R Moore and Sons is SAF Holland, an express delivery service for spare parts, and to the southwest is Noble Park.
12 The industrial building to the southwest of the site on Noble Street is currently occupied by West Star Logistics. Immediately across the railway line to the south of the subject site, CocaCola Amatil (CCA) operates a large facility which produces carbonated drinks, bottled water and hotfilled still products such as Powerade and fruit juices.
The proposed development
13 The proposed land use is a Waste Storage Facility as defined in Sch 1 of the City of Belmont Local Planning Scheme No 15 (LPS 15 or Scheme). The exact nature of the proposed operations changed between when the respondent considered the proposed development up to when the application was heard by the Tribunal. On 1 February 2017, the applicant lodged with the Tribunal a 'Consolidated Statement of Proposed Development' that identified, in a single document, the final version of the proposed development (see Exhibit 45).
14 The WTS will process commercial and industrial waste. Approximately 45% of the waste stream is considered 'recyclable', and is comprised of plastics, cardboard, paper, glass and ferrous waste. Of the remaining approximately 55% of waste, 25% is considered 'putrescible', and is comprised of commercial food waste, wood and green waste. The WTS will not receive any municipal waste.
15 The proposed capacity of the WTS is 350 tonnes per day with an annual total throughput of approximately 120,000 tonnes.
16 In terms of site access, it is intended that trucks will enter by the southwestern crossover from Noble Street, drive to the rear of the site to the proposed WTS building, and following delivery, drive along the northeast boundary to exit.
17 It is estimated that the delivery and transfer of waste will involve 180 truck movements per day. The deliveries to the WTS will be made by 12.5 metre long trucks while transfers of processed wasted will be made by 31.8 metre long trucks.
18 Trucks delivering waste will reverse into the designated part of the proposed WTS building and dump the load onto the floor. Fast acting automatic doors in the front of the proposed WTS building will remain closed until a truck carrying waste has manoeuvred ready to reverse into the proposed WTS building, open to allow the truck to enter and then close until the truck has discharged the waste and is ready to leave. A front end loader will then be used to separate clean recyclable material and deliver this into a small separate area within the proposed WTS building. The remaining material is then pushed into stockpiles ready for loading onto the conveyor feeding a compactor. The compactor compacts the waste and then it is conveyed to an opening, with another fast acting automatic door, ready to be loaded onto outgoing waste transfer trucks. Waste transfer trucks will then deliver compacted waste to the applicant's Dardanup waste disposal facility.
19 The recyclable materials will be placed in bins located in the smaller, separate section of the proposed WTS building pending transport of those bins to another location off site for further sorting.
20 It is proposed that onsite waste will be transferred within 24 hours of its delivery to the site.
21 It is intended that the WTS will operate between 7 am and 10 pm Monday to Sunday although waste will only be received between 7 am and 5 pm. Three staff will be employed at the facility. The floor of the waste delivery area within the proposed WTS building will be cleared of all waste by 10 pm each day and will remain clear until the first waste delivery the following day.
22 Compacted waste will be loaded into waste transfer trailers between:
• 7 am and 10 pm Monday to Saturday; and
• 9 am and 10 pm every Sunday.
23 Loaded waste transfer trailers will leave from the WTS to the Dardanup facility between 4 am and 4 pm. Up to eight loaded waste trailers will be parked on site on a progressive basis from approximately 3 pm until approximately 10.30 pm on each day Monday to Saturday in trailer parking bays located adjacent to the proposed WTS building. Three sets of waste transfer trailers loaded between 3 pm and 10 pm will be parked overnight within the proposed WTS building after the waste has been removed from the floor of the waste delivery area from Monday to Saturday and during the day on Sundays ready for travel the next day. A fourth set of trailers will be parked overnight from Monday to Saturday and during the day on Sundays in the parking area outside the proposed WTS building.
24 The waste transfer trailers are expected to achieve an average of 52 tonnes per trip and do seven trips everyday Monday to Saturday and two trips on Sunday.
25 The application will also involve a range of alterations and additions to the proposed WTS building. These will include separating the building into two compartments of 1400m² and 300m² respectively. The smaller compartment will involve recyclable material isolated from the waste stream which will be placed in bins pending transport for further sorting. Alterations will include an additional opening in the front wall, the fitting of fastclosing motorised roller shutter doors, the installation of a conveyor and compactor unit, the upgrading of the electrical supply, modifications to lighting, et cetera. A plastic curtain is to be installed as part of the compactor unit to prevent the escape of litter and dust. Associated external infrastructure would include making good damaged hardstand areas, two weighbridges and the installation of a demountable office adjacent to the incoming weighbridge.
26 The Operation Methodology submitted with the application includes measures in relation to dust, odour, litter and bird management, noise, vermin, leachate and stormwater management and fire prevention and management.
27 Four car parking spaces will be provided towards the front of the subject site.
28 The applicant advised that while the storage of up to two waste trailers in the trailer parking bays (the fourth set of trailers referred to above) is sought by the applicant, this component of the development is separable from the balance of the proposed development.
Planning framework
29 The site is zoned 'Industrial' under the provisions of the Metropolitan Region Scheme.
30 The site is zoned 'Industrial' under LPS 15. The objective of the Industrial zone is set out under cl 4.2 of LPS 15 as follows:
The Industrial Zone is intended to provide for the industrial development of the Kewdale Industrial Estate and the Redcliffe Industrial Estate. The significance of the Kewdale Industrial Estate as a transport and logistics hub as part of the Kewdale-Hazelmere Integrated Masterplan is acknowledged. The City may approve a wide range of industrial activities within this zone subject to conditions designed to achieve a high standard of industrial environment.
31 At the time of the applicant's original application to the respondent, the proposed development came within the use classification 'Noxious Industry' under LPS 15. However, in December 2015, the City initiated proposed Amendment No 7 to LPS 15 which sought, among a number of other provisions, to introduce the land use 'Waste Storage Facility' as an inclusion within the Zoning Table as an X use within all zones. However, on 9 August 2016, the Western Australian Planning Commission published notification of the Minister's decision in relation to Amendment No 7. It was there stated that '[t]he proposed prohibition of Waste storage facility use class in all zones was not supported as it is considered that adequate controls exist through the requisite planning and environmental approvals to manage potential amenity impacts'.
32 In addition the Minister determined:
In Table 1 Waste storage facility is to be an 'A' use in the Industrial zone, and prohibited in all other zones.
33 The use class 'Waste Storage Facility' is currently defined in LPS 15 as follows:
… premises used to collect, consolidate, temporarily store or sort waste before transfer to a waste disposal facility or a resource recovery facility on a commercial scale[.]
34 The use class 'Waste Storage Facility' is designated in the Zoning Table of the Scheme as an 'A' land use in the Industrial zone. An 'A' use has the following meaning under cl 4.3.2 of LPS 15:
… the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4[.]
35 Clause 5.13 of the Scheme establishes site and development requirements for the Industrial zone. Clause 5.13.1 includes the following:
…
(a) Amenity: No use or other development of land within the Industrial Zone shall cause in the opinion of the City nuisance or annoyance by way of noise or other emissions beyond the site on which it is conducted[.]
State Planning Policy 4.1: State Industrial Buffer Policy
36 One of the objectives of State Planning Policy 4.1: State Industrial Buffer (SPP 4.1) is to provide for the safety and amenity of land uses surrounding industry, infrastructure and special uses. SPP 4.1 generally applies to major infrastructure such as ports, solid waste disposal sites and gas/petroleum pipelines.
37 In 2005, the Environmental Protection Authority (EPA) released a guidance document for the assessment of environmental factors entitled 'Separation Distances between Industrial and Sensitive Land Uses' (2005 Guidelines) which specifically addressed separation distances between industrial and sensitive land uses in order to avoid conflicts between these land uses. The 2005 Guidelines suggest a separation of 200 metres between a 'solid waste depot' defined as where 'waste is stored or sorted, pending final disposal or reuse' and sensitive land uses. The 2005 Guidelines define separation distance as the shortest distance between the boundary of the area that may potentially be used by an industrial land use and the boundary of the area that may be used by a sensitive land use.
38 Sensitive land uses are 'land uses applied to places where people live or regularly spend time and which are therefore sensitive to emissions from industry'. The 2005 Guidelines suggest '[s]ome commercial, institutional and industrial land uses which require high levels of amenity or are sensitive to particular emissions may also be considered "sensitive land uses"'.
39 Examples included in the 2005 Guidelines comprise 'some retail outlets, offices and training centres, and some types of storage and manufacturing'.
40 The 2005 Guidelines suggest that a responsible authority wishing to deviate from the advice in the guidelines would be expected to put a wellresearched, robust and clear justification arguing the need for that deviation.
41 In September 2015, the EPA released a draft Environmental Assessment Guideline for Separation Distances between Industrial and Sensitive Land Uses (2015 Guidelines). This document also suggests a separation distance of 200 metres between a 'solid waste depot' defined as where 'waste is stored or sorted, pending final disposal or reuse' and sensitive land uses. The document defines separation distance as the recommended distance to separate a source of emissions (gaseous and particulate emissions, dust, odour and noise) from sensitive land uses in order to avoid adverse impacts to human health and amenity.
42 Sensitive land uses are 'land uses applied to places where people live or regularly spend time and which are therefore sensitive to emissions from industry'. The document suggests '[s]ome commercial and institutional land uses which require high levels of amenity or are sensitive to particular emissions may also be considered sensitive land uses'. Unlike the 2005 Guidelines, the 2015 Guidelines do not provide examples of sensitive commercial and institutional land uses.
Kewdale-Hazelmere Integrated Masterplan 2006
43 In 2003, Kewdale-Hazelmere was identified as having strategic importance for Perth and Western Australia and the Kewdale-Hazelmere Integrated Masterplan (Masterplan) involved the preparation of an integrated transport and land use masterplan for the area.
44 The primary objectives of the Masterplan include to 'facilitate land use and infrastructure planning for the area as a major road and rail freight logistics precinct'.
45 Clause 6.3.1 of the Masterplan provides:
The movement and distribution of freight requires large areas of storage for containers, high volumes of stock, and warehousing[.]
46 Recommendation 33 in Table 7.1 includes the following:
Consider measures to facilitate the retention and growth of strategic industrial land uses in Kewdale-Hazelmere, particularly those that are reliant on proximity to freight nodes and/or key infrastructure such as roads, rail or air transport[.]
47 Clause 67 of the deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations), which, under s 257B(2) of the Planning and Development Act 2005 (WA) and reg 8(1)(c) and reg 10(4) of the LPS Regulations, has effect as part of LPS 15, states, in part, as follows:
In considering an application for development approval the local government [and the Tribunal on review] is to have due regard to the following matters to the extent that, in the opinion of the local government [or the Tribunal], those matters are relevant to the development the subject of the application -
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c) any approved State planning policy;
(d) any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e) any policy of the Commission;
(f) any policy of the State;
…
(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following -
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
…
(r) the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y) any submissions received on the application;
(za) the comments or submissions received from any authority consulted under clause 66[.]
The issues
48 The issues put forward by the respondent in this matter were as follows:
a) Whether the proposed WTS, including onsite operations at the facility as well as trucks accessing the facility, will adversely impact on, and is therefore incompatible with, established land uses in the locality as a result of dust and odour emissions.
b) Whether the proposed WTS achieves appropriate separation distances from sensitive land uses.
c) Whether the proposed WTS is inconsistent with the strategic planning for the Kewdale industrial area as a transport and logistics hub in the state.
d) Whether the applicant has provided sufficient information to accurately determine the impact of the proposed operation on the locality.
e) Whether the WTS can be colocated and operate with the existing (unapproved) land use on the other portion of the subject land.
f) What weight should be accorded to Amendment No 7 to LPS 15 which provides that a WTS is a prohibited use in the industrial zone?
49 The applicant did not substantively dispute this identification of the issues. The Tribunal notes that the issue identified at paragraph (f) above is no longer a relevant consideration, as, prior to the hearing, Amendment No 7, as amended by the Minister, was adopted and became incorporated into LPS 15.
50 A further issue was raised by the City, who was given leave to intervene in a limited way in the proceedings. The City was given leave to raise, and bring evidence in relation to, the issues of:
a) risk of flies, birds and vermin; and
b) liquid control.
51 The Tribunal notes that a more correct formulation of the issue to be determined by the Tribunal is:
What is the correct and preferable determination of the applicant's request for development approval for the proposed development, having due regard to the matters identified in cl 67 of Sch 2 of the LPS Regulations that are relevant to this application?
52 However, the identified issues effectively raise for consideration the majority of those relevant matters. The Tribunal will deal with each of these matters, although not necessarily in the same order, and will then draw together its conclusions in relation to each of the identified issues as part of explaining the Tribunal's final determination of the application pursuant to cl 67 of Sch 2 of the LPS Regulations.
a) Whether the proposed WTS, including onsite operations at the facility as well as trucks accessing the facility, will adversely impact on, and is therefore incompatible with, established land uses in the locality as a result of dust and odour emissions
Dust
53 Mr David Ronald Pitt, an environmental scientist with extensive experience in air quality management, carried out modelling for the likely dust emissions that would be produced by the operations of the WTS (see Exhibit 32 and Exhibit 33). Mr Pitt carried out dust sampling at the applicant's Bayswater waste transfer facility in order to obtain information about the amount of dust produced by the unloading and handling of a waste stream of the same type that is intended to be handled at the WTS. Samples were taken from inside the building used for the unloading and handling of waste and also from areas external to the building. Using the results from these samples, Mr Pitt calculated expected dust emission from the WTS using an identified model and specified assumptions. When comparing the resulting predicted dust emissions against an identified standard applicable to a residential area (residential criterion), Mr Pitt concludes (Exhibit 33 at paragraph 22) that:
… the maximum incremental PM10 [inert particles each having an equivalent aerodynamic diameter of less than 10 micrometres] from the proposed WTS:
(a) at the nearest point of the residential area, is approximately 0.05 μg/m³ which is 0.1% of the residential criterion; and
(b) at the nearest point on the buildings at the CCA and WWL premises, is approximately 0.5 μg/m³ and 1 μg/m³, which is 1% and 2% of the residential criterion respectively.
54 In addition, Mr Pitt carried out a cumulative assessment of the predicted cumulative particulate matter concentrations at the nearest point on the buildings at the CCA and the WWL premises. He concluded that the relevant residential criteria were met with a very wide margin of safety. It was also noted by Mr Pitt that the modelling had been done assuming no dust management measures were being used at the WTS. On the basis that the applicant's management plan proposes utilising dust suppression measures, Mr Pitt was confident that dust would not cause any issue.
55 In his initial witness statement, Mr Gary Christopher Graham, an environmental scientist and certified air quality professional called by the respondent, identified that the applicant had not, at that point, carried out any assessment of the potential dust emissions from the WTS. However, in the joint witness statement of Mr Pitt and Mr Graham, Mr Graham agreed that the potential dust impact had been adequately addressed by Mr Pitt (see Exhibit 9).
56 In their joint witness statement it states (Exhibit 9 at paragraph 3):
Both experts agree that the proposed dust management controls should be implemented as conditions of consent for the proposed operation of the facility.
57 The joint witness statement of the environmental and public health expert witnesses, Mr Kevin John Davidson and Mr Noel John Davies, in regard to dust (Exhibit 8 at paragraphs 11 and 12) states:
The experts agree that the installation of a misting system should address and internal dust issues.
The experts disagree to what extent material would be carried into the yards and become pulverised.
58 Mr Davidson, who offered the opinion that there was a risk of dust arising from the carrying of material into the yards, did not provide any foundation for that opinion in his witness statement or at the hearing. The Tribunal is not certain that Mr Davidson has any relevant qualifications or experience that would qualify him to give an opinion of this kind in any event.
59 No substantive evidence was before the Tribunal on which it could be satisfied that there was any real risk of material of a kind that could become pulverised being carried outside the proposed WTS building in any sufficient quantities into a location where it was likely to become pulverised such that a measurable dust issue might arise.
60 On this basis the Tribunal determined that there is unlikely to be any adverse impact on any of the established land uses in the locality caused by dust emissions from the WTS.
Odour
61 Mr Pitt and Mr Davies undertook inspections of parked waste vehicles at the subject site in relation to odour emissions and their respective reports were in evidence before the Tribunal.
62 Mr Pitt's evidence was that he detected intermittent garbage odours from about 20 metres downwind of the front quad axle combination trailer and he detected odours from the cavity at the front of the most southerly trailer. He subsequently inspected all the trailer cavities for odour and observed that most had quite noticeable odour, some stronger than others.
63 Mr Pitt also undertook a number of field odour assessments by profiling along the laneway adjacent to where the combination trailers were parked. Due to the turbulent nature of the wind odours, which he rated often as 'distinct' and occasionally as 'strong', he expected odour to be intermittently detectable up to about 50 metres downwind.
64 Mr Davies found there was a distinct waste odour in the area between the truck and trailer although no odour was detectable once he had moved approximately 5 metres from the opening between the truck and trailer. No odour was detectable at the rear of the trailer and no leakage of liquids was observed. He was just able to detect waste odours standing at a distance of about 10 metres laterally from the truck cab and 15 metres from the hitch joining the trailer to the truck (Exhibit 37).
65 Mr Geoffrey Norman Sumich, the caretaker/security manager for Weststar Logistics, the premises immediately to the southwest of the subject site, gave evidence in regard to the odour emanating from the site.
66 His evidence was that the smell of rubbish is immediately detectable from trailers parked along the southwest boundary between the two properties. His particular concern was trailers parked overnight and over the weekend. The strongest odours emanated from trailers parked over the weekend. He also observed a brownish liquid pooling on the ground at the back end of the trucks. Although Mr Sumich made a number of statements in his witness statement that he later resiled from, the Tribunal did not form the impression that Mr Sumich was an untruthful witness. However, the Tribunal considered that Mr Sumich was an unreliable witness in relation to the details of when and what type of trucks arrived and departed from the site.
67 Mr Sumich's evidence in relation to complaints made to the respondent about odour is supported by Mr Davidson's evidence that the complaints were received. Mr Sumich had made a number of complaints to the City in regard to odours from the KTrans premises. In evidence at the hearing, Mr Davidson, the Manager of Health and Community Safety at the City, confirmed that complaints, which all came from Mr Sumich, started in August/September 2017 and generally related to conditions on weekends. Mr Davidson also provided evidence of attending the site in response to Mr Sumich's complaints, at which time Mr Davidson also detected strong unpleasant waste odour. The Tribunal is satisfied that Mr Sumich did detect odours as he described in his evidence.
68 Mr Pitt undertook a number of odour dispersion modelling assessments in relation to the WTS (Exhibit 2 at pages 382 405; Exhibit 29 and Exhibit 33). The initial assessment used odour concentration measurements sampled from a municipal waste handling and recyclables sorting building in Malaga. The later assessments used odour concentration measurements sampled from the applicant's existing waste transfer facility in Bayswater.
69 Following conferral with Mr Graham, Mr Pitt carried out further assessment using a methodology for estimating hourly odour emissions as agreed between Mr Graham and Mr Pitt. Mr Pitt concluded that if daily throughput was limited to 350 tonnes per day, waste receival restricted to daytime between 7 am and 5 pm and the proposed WTS building was cleared of waste by 10 pm, the estimated odour emissions would not exceed the Department of Environmental Regulation's criteria for acceptable impact on residential properties outside of the site, except for a marginal area of exceedance on the hardstand area of the neighbouring property at 12 Noble Street (Exhibit 34 and T:163; 24.01.17). Mr Graham agreed with this conclusion.
70 In their joint witness statement (Exhibit 9 at paragraphs 4 and 6), Mr Pitt and Mr Graham state:
… both experts agree that the potential impacts have been adequately addressed in the Air Quality Assessment.
…
Both experts agree that waste stored overnight in transfer trailers is a potential source of odour, and is a source of odour that has not been incorporated in the Air Quality Assessment[.]
71 The experts put forward a number of suggestions as to how the matter of odour from the transfer trailers could be addressed which included the following (Exhibit 9 at paragraph 7):
a. Restricting waste receival hours/throughput so that the rate of waste removal is sufficient to empty the waste from site each day in entirety without any requirement for overnight storage. This would deal with this matter directly;
b. Containerising the residual waste and storing the sealed transfer trailers offsite at an appropriate location overnight;
c. Containerising the residual waste and storing the sealed transfer trailers inside the waste transfer station overnight to offer additional containment and management;
d. Adapting/engineering the containers such that the risk of loss of containment of leachate is adequately reduced from that currently observed by Mr Sumich, and adapting management measures to manage those risks appropriately.
72 The proposal before the Tribunal in this review did not involve either restricting waste hours to preclude overnight storage of trailers on site or storage of trailers off site. Rather, the proposal is to store three sets of loaded waste transfer trailers in the parking area near the proposed WTS building between approximately 3 pm and 10.30 pm and then overnight within the proposed WTS building, and a fourth set of trailers in the parking area outside the proposed WTS building overnight, potentially from around 8 pm.
73 In response to the potential odour impact of storing the loaded trailers within the facility overnight the odour experts essentially agreed that the proposed WTS building would provide an effective containment of odour, at least until the doors of the proposed WTS building.
74 Mr Pitt stated that, in his opinion, to the extent that storage of waste in transfer trailers was to occur with the trailers parked inside the proposed WTS building overnight, this would not would not cause any change on the modelling results because:
… what's being proposed is to park the loaded trailers inside the building, close the doors and the building is, for all intents and purposes, sealed. The amount of odour that would escape inside a closed building with no air movement of significance would be very small and the probability of that small amount somehow escaping to the wider environment outside the building is very low so the amount of odour that would potentially escape from the building is minimal in that circumstance.
(T:163164; 24.01.17)
75 Mr Graham agreed:
… If you compare the model scenario with a subsequent modelling scenario which also has six parked trailers inside the waste transfer station overnight, the actual changes in the modelling would probably be fairly low because it does offer an effective containment of odour. (T:164; 24.01.17)
76 At the point of the doors opening, Mr Graham considered that there was the potential for odour emission to occur, depending on the level of odour buildup within the proposed WTS building if proposed management techniques are not compiled with (T:204; 24.01.17). Mr Pitt was of the view that the flow of air would not be such as to allow any significant emission of odour outside of the proposed WTS building in the circumstances (T:188189; 24.01.17).
77 In relation to the potential impact of storage of waste in trailers parked outside the proposed WTS building, the experts expanded on their views at the hearing. As this was a significant factor in the determination reached by the Tribunal, we consider it necessary to reproduce the relevant parts of the transcript in these reasons:
[Mr Pitt]: … So can I give my version of what I think are some issues at least with the empty trailers? Okay. So my understanding is, well, the trailers get loaded there. We have a compactor which sort of rams the waste into the trailer. There's a seal around the back door of the trailer. If that seal is working properly, there should be no escape of anything in the process of loading a trailer.
Okay, there's little bits of gap around the front end when you do the disconnection and that's sort of then from the building. But let's put that to one side. So we have a loaded trailer that ultimately gets taken down to Dardanup. Now, in the process of sort of that transport, I expect the waste is sort of moving around. It's probably heating up a bit, etcetera, etcetera. There's probably a little bit of liquefaction. You know compression, some liquids possibly forming on the floor of the trailer during the trip down there.
… the hard tailgate, gets opened up and the blade inside the cavity area that we've all sort of seen, pushes the waste out. Okay. From that point we have a more or less empty trailer and we probably have silage and liquefaction, leachate, if you like, on the floor of the trailer. …
…. To me that's an opportunity to deal with the fundamental problem which is the fact that it appears as though the interior of the trailer is not completely cleaned out or whatever. So on the return trip, some of that liquid that has sort of accumulated inside the cavity of the trailer sort of escapes under the blade on the return trip, which is why you get sort of some leachate occurring in the cavity area. And there's probably leachate still inside the bulk of the trailer.
…
… If you didn't go down that sort of path, I still believe that simply tarping the cavity area of the trailer where the - the - the gate is, will very significantly reduce odour emissions from that area. It's my view that the odour is primarily from that area. I don't believe there's much in the way of odour from the seal around the hard door, but I have - I mean, I can only go on what I've seen, and I haven't seen any seals dangling or anything like that[.]
(T:165-167; 24.01.17)
78 It is clear from the language Mr Pitt is using, in particular his frequent use of 'probably', that he is, to a degree, speculating.
79 The Tribunal had before it evidence from Mr Paul Antony that at the Dardanup facility, currently the trailers were 'internally washed down' and this included the cavity in the front where there was potential for waste or liquid to be trapped (T:118; 24.01.17). This evidence was not challenged. Potentially the current cleaning is inadequate, or alternatively it does not have any significant role in preventing odour emissions from the trucks, at least when they are used to store compacted waste.
80 In relation to trailers in which waste was stored, Mr Pitt stated:
… In terms of the full trailer, I think it would be wise to tarp the cavity area when they're being loaded. That there's no obstacle, that I can see, to prevent you doing that. So in other words, when it's being loaded at Kewdale and, sort of, being rammed and compressed, the area around the cavity is tarped, so there is no, sort of, through flow of air through that area, which should start off clean, it has been cleaned properly in the first place.
I simply don't know whether the initial process of pushing waste together will cause a lot of immediately, sort of, liquefaction and liquid drains to the floor, you know, it would just depend so much on the - the - the type of waste that, sort of, happens to be in there at the time. You know, in my experience of the waste sampling at Bayswater, there's a lot of dry waste as well as, you know, potentially wet leachate causing waste, so I just don't know how quickly - how long it would take for, sort of, the compression of that combination of waste to result in, sort of, liquid, sort of, dribbling down to the point at which it can pool on the floor and potentially escape in to the cavity area or if the seal at the tail gate is no good, through the seal.
I just don't know, but nevertheless, it would be helpful from, I know the management point of view, to simply tarp the front end of the trailer where the cage is whilst it's being loaded and the only issue then is how quickly the leachate can, potentially, form after the trailer is, sort of, moved from that point.
(T:168-169; 24.01.17)
81 Mr Graham essentially agreed with Mr Pitt's evidence. He went on to state:
…
I'm basing my opinion on the fact that it does generate an odour, and given the evidence that has been provided, I think that's, probably, a reasonable position, but I haven't - I haven't experienced it myself. The housekeeping measures that they're suggesting to be appropriate, and that is whilst when the trailer is empty, it's getting into it with a high pressure hose and just rinsing it out and there is - there is this bung at the bottom that has got a threaded fitting on it.
It's designed to put a - it's looks to me as if it's designed to put a four-inch drain onto it, and drain that off into some kind of container, and do whatever needs to be done with that - with that waste water. On the - on the matter of the - the blade, and its lack of containment, as it's like a metal on metal fitting. I think fitting another blade behind that would - would create the seal, and this would probably be a replaceable element pretty quickly. It - it will wear through, but having, essentially, a seal that moves with that blade would offer a significant potential for containment at the -at the front end of the - of the trailer.
So it's such that the - the leachate that's either within the trailer or is generated through where the compaction of the waste as it's compacted in which, in my opinion, would - has a - a potential under certain circumstances, generate a significant volume of leachate and would offer a containment such that that it's contained actually within the part of the trailer that's meant to house it, and it's not then allowed to drain out into the mechanical operating part that's, obviously, a source for potential odour, and the other end - the other - the back end of that is the seal on the trailers[.]
(T:169-170; 24.01.17)
82 Mr Graham was of the view that the proposal to tarp the front cavity (rather than put a seal behind the blade as he spoke about) was a 'bandaid fix'. He went on to say:
It wouldn't be a hard thing to explore, how quickly leachate can, potentially - like, after filling a trailer, how quickly it can potentially form and then seep under the blade into the cavity area. That would be a very easy thing to investigate and it - it - if it doesn't do it very quickly, it takes, really, the road trip to generate that liquid, then there's no real issue about liquid seepage during - for a loaded trailer, but it - it - it does - the leachate does generate quickly following loading and does seep quickly underneath the blade, the metal on metal - metal blade on the metal floor, then certainly some sort of approach to sealing that blade against the floor would be a better option.
(T:171; 24.01.17)
(Note: inadvertently identified in transcript as Mr Pitt)
83 Mr Davidson gave evidence that he had received complaints of, and observed, significant amounts of leachate coming out of trailers at the site through where the back seal is located (Exhibit 10).
84 This issue had resulted in the ongoing use of trays with kitty litter being placed under the rear end of the trailers to catch any spillage of leachates. Mr Pitt expressed the view that 'kitty litter would be very effective in controlling the odour'. While Mr Graham suggested 'I can only imagine that it's - it's a good absorbent, and it's designed to either neutralise or mask smells, usually from cats'. The odour experts agreed that that if any leachate 'goes into kitty litter it would substantially diminish any - but might not eliminate, any potential odours' (T:196; 24.01.17).
85 Mr Antony gave evidence that the trailers are currently cleaned at the Dardanup facility before returning to the site.
86 In light of these facts, and given that neither expert knows how long it takes for leachate to formulate, the Tribunal is not satisfied that it can place any weight on Mr Pitt's speculations about the source of odour and whether or not it could be reliably predicted to be able to be contained by the use of a tarp around the front cavity as suggested by Mr Pitt.
87 When asked whether the witnesses agreed that if the identified management processes were in place (including having a tarp over the front cavity, kitty litter in place to catch any leachate, checks to ensure that the back door seals are in working order and a clean out of the trailers at the Dardanup facility) it is unlikely that the storage of waste in trailers parked outside the proposed WTS building between 4 pm until 10.30 pm they responded:
[Mr Pitt]: That is my view. Yes.
[Mr Graham]: Yes. Only with the caveat that those measures would need to be demonstrated to be sufficient, so that doesn't generate odour on site. But at the moment we're assuming that they would be sufficient. That just needs to be - there needs to be some level of demonstration that is in fact reality.
(T:218; 24.01.17)
88 Based on all of the available evidence before it in this review the Tribunal finds that it is not satisfied that there is a sufficient basis to be able to find that the storage of loaded trailers in the parking area outside the facility will not cause an adverse impact on the amenity beyond the boundaries of the site for the following reasons:
• There has not been any formal assessment or modelling of the potential impacts.
• The evidence raises a concern that if cleaning and containment arrangements were not implemented consistently and appropriately there is a real potential for waste being stored in trailers to be a source of odour emission.
• There was a question between the odour experts of whether the tarps over the grilles at the front end of the tailers would be effective or whether an additional blade would need to be installed behind the existing blade to provide an effective seal.
• While the odour experts agreed the quality of the seal at the back of the trailers would potentially be critical in terms of containing odour emissions from the trailers, the evidence established that there had been issues with leakage from the rear of the trailers in the past.
• There was no definitive evidence on the likely extent and timing of any buildup of leachate within the loaded trailers and this aspect required further investigation.
• Although Mr Pitt and Mr Graham largely agreed that a number of 'housekeeping' measures would be likely to be sufficient to contain potential odour emissions, the Tribunal is not satisfied that these opinions were more than speculative and some of the assumptions of the experts had not been established by the evidence. The Tribunal prefers the evidence of Mr Graham on this point that 'those measures would need to be demonstrated to be sufficient' before the Tribunal could be satisfied that the trailers would not be a source of odour emission extending beyond the boundary of the site adversely affecting the amenity of neighbouring properties.
89 Importantly, the Tribunal finds that it is not appropriate to attempt to control the potential impacts from the loaded trailers through conditions which would leave for later consideration a nonincidental aspect of the proposed development.
90 While not falling within their areas of technical expertise, the planning experts did provide evidence in regard to the potential impact of odour on the amenity of the locality.
91 Mr Neville Vernon Deague stated that the proposed development is not appropriate at the site as the site is very constrained by the fact that existing uses in the locality are less tolerant of adverse impacts. In his view, the WTS could not operate without impacting adjoining land uses.
92 It was Mr Jeremy Richard Hofland's evidence that the odour of trucks parked outside will need to be addressed and resolved. In his view, it would be beneficial if modelling could be undertaken prior to approval and odour monitoring would be required. However, he suggested that the substantive issue is the fourth pair of trailers which is not, at this point, a fatal flaw to the proposed development.
93 For these reasons the Tribunal finds that the proposed development is inconsistent with cl 4.2 (objective of the Industrial zone) or cl 5.13.1 (use or other development of land within the Industrial zone) of LPS 15.
94 During the hearing the use of the smaller compartment was clarified and detail was provided on installation of a plastic curtain around the compactor. On the basis of this further information the Tribunal determines that the waste transfer facility itself would not generate unacceptable odour impacts that were likely to adversely impact on established land uses in the locality.
b) Whether the proposed WTS achieves appropriate separation distances from sensitive land uses
95 The joint witness statement of the expert planners Mr Deague, Mr Hofland and Ms Katina Joy Marchbank dated 19 October 2016 (Exhibit 13) states at paragraph 8 that the experts disagree '[o]n what are classified as sensitive uses for the purpose of appropriate separation distances'.
96 The 2015 Guidelines illustrate in Figure 1 how to measure a separation distance. This is to be the distance between the industry activity boundary (gold polygon) and the sensitive land use activity boundary (green polygon). The activity boundary of the sensitive land use is the area (within a polygon) that includes all sensitive uses (such as the building and outdoor playground of a child care centre).
97 The predicted odour levels included in the joint witness statement of Mr Pitt and Mr Graham establishes that other than a marginal extension onto the hardstand area of the property to the north currently occupied by WWL (12 Noble Street) and potentially marginally on the CCA site to the south of the railway line, it is unlikely that odour emissions will impact on any areas outside the site. Thus even if the uses occurring within neighbouring and nearby properties were determined to be sensitive uses, the impacts of the WTS itself comply with the relevant provisions of both the 2005 and 2015 Guidelines regardless of whether the generic separation distances have been achieved.
c) Whether the proposed WTS is inconsistent with the strategic planning for the Kewdale industrial area as a transport and logistics hub in the state
98 The joint witness statement of Mr Deague, Mr Hofland and Ms Marchbank dated 19 October 2016 (Exhibit 13) states at paragraph 9 that the experts disagree on '[w]hat is a transport and logistics use?'.
99 In responding to questions from the Tribunal in the hearing, the planners agreed the following matters:
• that KTrans, the firm currently utilising the front portion of the subject site is a transport/logistics company. It is noted that a formal approval for this use from the City is still pending;
• that in the event that the WTS was approved, KTrans (subject to approval) would still utilise the larger portion of the subject site (that is, more than 50%); and
• the proposed WTS had a direct functional relationship with KTrans (T:112; 25.0.17).
100 In addressing the question of whether the WTS was an appropriate use on the subject site there was a divergence of opinion between the expert planners.
101 Ms Marchbank argued that uses on the subject site needed to be complimentary to transport/logistic uses in the sense of servicing transport/logistic uses in some way. Given that, in her view, this was not the case with the proposed WTS, the use was not appropriate on the site (T:120; 25.01.17).
102 Mr Hofland took the view that the nature of the operation meant that the proposed WTS constituted a transport/logistics use and was therefore entirely appropriate on the subject site (T:121; 25.01.17).
103 Mr Deague cited the relevant amenity provisions of the Scheme (cl 4.2 and cl 5.13.1) as the relevant provisions. He stressed the fact that an 'A' use was 'not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4' (emphasis added).
104 Mr Deague stated that you need to consider the sensitivity of nearby uses, which if the extensive range of proposed control measures did not work, could be severely affected (T:122; 25.01.17).
105 As stated above, the objective of the Industrial zone is (cl 4.2 of LPS 15):
The Industrial Zone is intended to provide for the industrial development of the Kewdale Industrial Estate and the Redcliffe Industrial Estate. The significance of the Kewdale Industrial Estate as a transport and logistics hub as part of the Kewdale-Hazelmere Integrated Masterplan is acknowledged. The City may approve a wide range of industrial activities within this zone subject to conditions designed to achieve a high standard of industrial environment. (Emphasis added)
106 The strategic planning for the Kewdale-Hazelmere area is set out in the Masterplan prepared by the Western Australian Planning Commission in 2006.
107 Two of the primary objectives of the Masterplan are to:
• facilitate land use and infrastructure planning for the area as a major road and rail freight logistics precinct;
…
• develop an understanding of the functions of key industrial areas -Hazelmere, Kewdale, Forrestfield[.]
108 While much of the report focuses on the issues of infrastructure planning the recommendation which directly addresses the question of land use reads as follows:
… measures to facilitate the retention and growth of strategic industrial land uses in Kewdale-Hazelmere, particularly those that are reliant on proximity to freight nodes and/or key infrastructure such as roads, rail or air transport[.]
109 The Tribunal finds that Ms Marchbank's view that the Masterplan imposes a need for uses within the Masterplan area to be complimentary to transport/logistic uses in the sense of servicing transport/logistic uses is an unnecessarily narrow approach. This approach is not consistent with the wide range of industrial activities the City may approve within this zone under LPS 15, with the zone objectives and the explicit reference in the Masterplan to uses that rely on proximity to key infrastructure such as roads.
110 The Tribunal is satisfied that the evidence provided clearly identifies the need of the proposed WTS to have access to strategic road infrastructure.
111 The Tribunal is not satisfied that the proposed WTS would be inconsistent with the objectives or provisions of the Masterplan. Subject to the proposed WTS being such that the Tribunal could be satisfied that there would not be any adverse impact on amenity of locality, the Tribunal is not satisfied that there is anything inherent about the proposed use that is inconsistent with facilitating and encouraging the use of the area as a transport and logistics hub.
d) Whether the applicant has provided sufficient information to accurately determine the impact of the proposed operation on the locality
112 The joint witness statement of the expert planners, Mr Deague, Mr Hofland and Ms Marchbank dated 19 October 2016 (Exhibit 13) states at paragraph 11 as follows:
The experts noted the updated odour and dust assessments have not been reviewed by the respondent's experts.
113 This has now been done. The Tribunal is satisfied that there is sufficient information in relation to dust in evidence before it. The Tribunal is satisfied that there is sufficient information in relation to the potential impact in terms of odour arising out of the use of the proposed WTS building to be satisfied that there will not be any adverse impact on neighbouring sites from the proposed development. However, the Tribunal is not satisfied that it has sufficient information or evidence before it to be able to conclude that the proposed development will not have an adverse impact caused by odour emissions arising from the storage of waste with trailers parked on site.
114 The question of sufficient information will be dealt with by the Tribunal in addressing the substantive issues before it in this review.
e) Whether the WTS can be co-located and operate with the existing (unapproved) land use on the other portion of the subject land
115 The joint witness statement of Mr Deague, Mr Hofland and Ms Marchbank dated 19 October 2016 (Exhibit 13) states at paragraph 14 as follows:
The experts agree the co-location issue is no longer an issue for determination by the Tribunal.
116 Given the joint evidence of the planning experts this issue does not require assessment by the Tribunal in this review.
Matters raised by the intervener
117 On 21 September 2016, the City was given leave to intervene in the review proceedings, on the issues of:
a) risk of flies, birds and vermin; and
b) liquid control.
118 In its closing submissions the intervener submitted that:
… to the extent that supposedly-acceptable odour, bird and vermin impacts are said to be preventable only by the implementation of extensive and stringent management measures and conditions: the tenor [of] Mr Deague's evidence, which should be accepted, is that there are too many susceptibilities of those management measures and conditions to flaws and failings in human systems, for the planning authorities to be able to safely regard the proposed development as acceptable.
119 Mr Davidson in addressing the question of birds, vermin and flies stated 'it's a wellknown problem with premises of this nature'. (T:67; 25.01.17). In one of his witness statements Mr Davidson raised what he saw as substantive issues with birds, rats/mice and flies. However, in doing so he did not provide any evidence or foundation for his opinion that these issues could not be effectively managed on the site by way of the proposed management measures.
120 Mr Davies was, early in his career, responsible for regulating all the state's waste management facilities.
121 Mr Davies' view was that 'I've no disagreement with [Mr Davidson] in terms of the potential putrescible waste to attract flies, vermin' (T:8; 25.01.17).
122 In dealing with rats and mice Mr Davies argued 'I don't say there's no risk associated with it. There are well established management controls' (T:17; 25.01.17).
123 In regard to birds Mr Davies stated '[b]irds, I will acknowledge, are a significant issue in terms of any waste facility. Every waste facility has to have management protocols in place for them' (T:18; 25.01.17).
124 The Tribunal accepts the agreed position of Mr Davidson and Mr Davies that the risk of flies, birds and vermin is endemic in waste facilities.
125 The question is whether there are effective management strategies which can be put in place to deal with such risks. In this regard, and in view of both the extensive and relevant experience of Mr Davies in managing the environment issues associated with waste facilities, and the lack of any factual evidence or foundation for Mr Davidson's opinion, the Tribunal prefers the evidence of Mr Davies on this question.
126 For these reason the Tribunal finds that any potential risk associated with flies, birds and vermin could be managed by way of appropriate conditions on any approval.
127 The issue of liquid control raised by the intervener has been dealt with in addressing the evening and overnight storage of loaded trailers on the subject site.
Conclusion
128 The use class 'Waste Storage Facility' is designated in the Zoning Table of the Scheme as an 'A' land use in the Industrial zone. An 'A' use has the following meaning under cl 4.3.2 of LPS 15:
… the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4[.]129 Clause 5.13 of the Scheme establishes site and development requirements for the Industrial zone. Clause 5.13.1 includes the following:
…
(a) Amenity: No use or other development of land within the Industrial Zone shall cause in the opinion of the City nuisance or annoyance by way of noise or other emissions beyond the site on which it is conducted[.]
130 The evidence shows that there had, in the past, been detectable odour of waste beyond the boundaries of the site on a number of occasions under the existing operating conditions. Whilst those conditions are not identical to the conditions that might be expected under the application before us, that evidence does establish that there is a potential impact on amenity if any significant waste odour extends past the boundaries of the site.
131 The experts were in agreement in relation to the impacts of odour that they predict based on modelling, the parameters of which were agreed between them. However, the experts assumed in their modelling that there would be no odour arising from waste stored in trucks parked outside on site. We are not satisfied that this assumption is appropriate given the evidence just referred to.
132 The experts were of the view that it was likely that odour would not have an adverse impact if a number of measures that they identified, and largely agreed about, were adhered to. However, they were not able to identify with any confidence what would or would not cause odour to occur while the trucks were parked outside on site. The Tribunal is not satisfied that the proposed measures and their effectiveness are anything other than speculation in the absence of modelling or sufficient foundation for the belief that they would be effective.
133 The experts agreed that imposing conditions that required the measures they anticipated would be sufficient would be adequate, although one said that was subject to there being monitoring of the situation to establish the effectiveness of the measures.
134 However, the Tribunal considers it must have regard to the principles:
• that the Tribunal should be reluctant to impose conditions which strike at the heart of a proposal: Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; and
• that a condition cannot defer, for later consideration, a nonincidental aspect of a development: Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124.
135 The Tribunal finds that on the evidence before it, and in the context of the specific provisions of the Scheme, the storage of trailers outside the facility (even on an interim basis between the hours of approximately 4 pm and 10 pm is not an incidental aspect of the proposed development.
136 The Tribunal had before it extensive submissions made by land owners/occupiers in the vicinity, who object to the proposed WTS on the basis that there are particularly sensitive uses operating on their land, which they believe will be adversely impacted by the proposed WTS.
137 The Tribunal accepts the evidence of planners that this locality is a somewhat unusual industrial area with uses on neighbouring and nearby sites being particularly sensitive to the impacts of odour.
138 Weighing up all of the relevant factors to which the Tribunal must have due regard, pursuant to cl 67 of Sch 2 of the LPS Regulations, we have determined that the correct and preferable decision is to refuse the application for development approval in relation to the proposed development.
Orders
For the reasons set out above, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent, made on 27 April 2016, is set aside and instead a decision to refuse the amended application (as described in the applicant's Consolidated Statement of Proposed Development lodged with the Tribunal on 1 February 2017) is substituted.
I certify that this and the preceding [138] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER
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